> The most recently dismissed claims were fairly important, with one pertaining to infringement under the Digital Millennium Copyright Act (DMCA), section 1202(b), which basically says you shouldn't remove without permission crucial "copyright management" information, such as in this context who wrote the code and the terms of use, as licenses tend to dictate.
> It was argued in the class-action suit that Copilot was stripping that info out when offering code snippets from people's projects, which in their view would break 1202(b).
> The judge disagreed, however, on the grounds that the code suggested by Copilot was not identical enough to the developers' own copyright-protected work, and thus section 1202(b) did not apply. Indeed, last year GitHub was said to have tuned its programming assistant to generate slight variations of ingested training code to prevent its output from being accused of being an exact copy of licensed software.
So (not a lawyer!) this reads like the point about GitHub tuning their model is not a generic defense against any and all claims of copyright infringement, but a response to a specific claim that this violates a provision of the DMCA.
I don't know whether this is a reasonable defense or not, but your intuitions or mine about whether there is a general copyright violation or what's fair are not necessarily relevant to how the judge construes that very specific bit of legal code.