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Comment by throwaway290 | Hacker News Reader

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throwaway290

Hold on, how can it ever be fair use if this is literally at the foundation of their commercial offering?

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I'm not saying that it is. I'm saying that whether or not it is, this license won't make a difference.

It's certainly less ambiguous.

The BSD license restricts both "redistribution" and "use":

  Redistribution and use in source and binary forms, with or without
  modification, are permitted provided that the following conditions
  are met:

Training a Copilot-like system is "use" in obvious violation of clause 3:

  3. Use in source or binary forms for the construction or operation
     of predictive software generation systems is prohibited.

What else can we do?

Just because you use something for commercial purposes doesn't mean it can't be fair use. See Google v Oracle.

Wasn't that about API as opposed to implementation?

There was a question regarding whether an API could be copyrighted which was never answered by the Supreme Court. The last decision in that case regarding the topic was that they could be. A jury ruled that the use of the copyrighted API constituted fair use. A federal court then overruled that decision. The Supreme Court didn't rule on the copyrightability of the API because they decided even if it was the use by Google was fair use.

The comment I replied to implied that something couldn't be fair use if the use was commercial. Google's use of the API was commercial and yet ruled fair use by the highest court in the land.

I hold that whatever is fair use for an API is not even close to what is fair use for the source of actual implementation, let's see what the court has to say on that.

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