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Comment by candiddevmike | Hacker News Reader

That's the point though, if you recreate the code you need to follow it's license, which typically involves some kind of attribution. Copilot should be forced to spit out a list of all licenses it referenced. That would actually be pretty valuable.

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Furthermore, the language model itself is clearly a for profit derivative work and so would be subject to the wants of the original copyright owners and it is clearly a derivative work since without the inputs of the copyrighted code in its training it would be different and likely less effective.

There's a more interesting question about the copyright status of the code it outputs, since the language model is sort of like a compiler, but also not like a compiler since the output is based on other people's copyrighted code.

I feel a lot of people get caught up on the output code and completely ignore the fact that copilot itself is likely a massive copyright violation.

To add on to this discussion, the scale matters too, and this is something many people tend not to factor in.

Copilot breaks the assumptions about the lossy nature of human memorization, so a lawsuit challenging the merits of the activity is at least warranted.

It is absolutely not clear that an ML model is a derivative work. It might be for-profit but there's good arguments that it is incredibly transformative, and that each individual work the model is trained on is minimally important to the model (if you trained the model on every other document in the training set except the one being sued over, the model would perform very similarly). These are factors which will weigh against the copyright holder.

Hold on, there is a difference between “recreate” and “copy”. Copyright only applies to creative expressions. If the code is trivially “recreated”, it’s not particularly creative.

Copyrighted content can be used without the holder’s permission under “Fair Use”.

Don’t assume all code can be copyrighted. Purely functional expressions are not copyrightable. Code is math.

There’s a lot here to unpack.

By the Curry-Howard correspondence no code should be able to be copyrighted since every program is a formal mathematical proof. However judges aren't usually mathematicians with a background in Computing Science so it's of little consequence.

No algorithm should be copyright-able but your expression of that algorithm should. Programming language choice, variable names, comments, code-style, etc are all creative expressions which are relatively independent of the underlying math.

Are they though? They are minor variations in technical language to describe the same mathematical reality.

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