How GitHub Copilot Could Steer Microsoft Into a Copyright Storm

An anonymous reader quotes a report from the Register: GitHub Copilot -- a programming auto-suggestion tool trained from public source code on the internet -- has been caught generating what appears to be copyrighted code, prompting an attorney to look into a possible copyright infringement claim. On Monday, Matthew Butterick, a lawyer, designer, and developer, announced he is working with Joseph Saveri Law Firm to investigate the possibility of filing a copyright claim against GitHub. There are two potential lines of attack here: is GitHub improperly training Copilot on open source code, and is the tool improperly emitting other people's copyrighted work -- pulled from the training data -- to suggest code snippets to users? Butterick has been critical of Copilot since its launch. In June he published a blog post arguing that "any code generated by Copilot may contain lurking license or IP violations," and thus should be avoided. That same month, Denver Gingerich and Bradley Kuhn of the Software Freedom Conservancy (SFC) said their organization would stop using GitHub, largely as a result of Microsoft and GitHub releasing Copilot without addressing concerns about how the machine-learning model dealt with different open source licensing requirements. Copilot's capacity to copy code verbatim, or nearly so, surfaced last week when Tim Davis, a professor of computer science and engineering at Texas A&M University, found that Copilot, when prompted, would reproduce his copyrighted sparse matrix transposition code. Asked to comment, Davis said he would prefer to wait until he has heard back from GitHub and its parent Microsoft about his concerns. In an email to The Register, Butterick indicated there's been a strong response to news of his investigation. "Clearly, many developers have been worried about what Copilot means for open source," he wrote. "We're hearing lots of stories. Our experience with Copilot has been similar to what others have found -- that it's not difficult to induce Copilot to emit verbatim code from identifiable open source repositories. As we expand our investigation, we expect to see more examples. "But keep in mind that verbatim copying is just one of many issues presented by Copilot. For instance, a software author's copyright in their code can be violated without verbatim copying. Also, most open-source code is covered by a license, which imposes additional legal requirements. Has Copilot met these requirements? We're looking at all these issues." GitHub's documentation for Copilot warns that the output may contain "undesirable patterns" and puts the onus of intellectual property infringement on the user of Copilot, notes the report. Bradley Kuhn of the Software Freedom Conservancy is less willing to set aside how Copilot deals with software licenses. "What Microsoft's GitHub has done in this process is absolutely unconscionable," he said. "Without discussion, consent, or engagement with the FOSS community, they have declared that they know better than the courts and our laws about what is or is not permissible under a FOSS license. They have completely ignored the attribution clauses of all FOSS licenses, and, more importantly, the more freedom-protecting requirements of copyleft licenses." Brett Becker, assistant professor at University College Dublin in Ireland, told The Register in an email, "AI-assisted programming tools are not going to go away and will continue to evolve. Where these tools fit into the current landscape of programming practices, law, and community norms is only just beginning to be explored and will also continue to evolve." He added: "An interesting question is: what will emerge as the main drivers of this evolution? Will these tools fundamentally alter future practices, law, and community norms -- or will our practices, law and community norms prove resilient and drive the evolution of these tools?"

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