This is a bad analogy because P2P networks exist that are legal to operate, because Section 230 of the CDA prevents interactive computer services from being held responsible for user generated content.

What made Napster illegal is that the company did not create their network for fair use of content, but to explicitly violate copyright for profit.

Copilot is like Napster in this case, in that both services launder copyrighted data and distributed it to users for profit.

Copilot is not like other P2P networks that exist to share data that is either free to distribute or can be used under the fair use doctrine. Copilot explicitly takes copyrighted content and distributes it to users in violation of licenses, that's its explicit purpose.

It's entirely possible to make a Copilot-like product that was trained on data that doesn't have restrictive licensing in the same way it's entirely possible to create a P2P network for sharing files that you have the right to share legally.

The legal system takes intent into account.

So if you produce napster 2.0 to be the best music piracy tool, and you test it for piracy, and you promote it for piracy... you're going to have trouble.

If you produce napster 2.0 as a general purpose file sharing system, let's call it a torrent client, and you can claim no ill intent... you may have trouble but it's a lot more defensible in court.

I would find it a big stretch to say Github's intent here is to illegally distribute copyrighted code. No judgment on whether the class action has any merit, just saying I would be very surprised if discovery turns up lots of emails where Github execs are saying "this is great, it'll let people steal code."

> I would find it a big stretch to say Github's intent here is to illegally distribute copyrighted code.

Almost everything on GitHub is subject to copyright, except for some very old works (maybe something written by Ada Lovelace?), and US government works not eligible for copyright.

Now, many of the works there are also licensed under permissive licenses, but that is only a defense to copyright infringement if the terms of those licenses are being adequately fulfilled.

> Almost everything on GitHub is subject to copyright,

Agreed. Like I said, it's about intent. Can anyone say with a straight face that copilot is an elaborate scheme to profit by duplicating copyrighted work?

I don't think the defense is that it wasn't trained on copyrighted data. It obviously was.

I think the defense is that anything, including a person, that learns from a large corpus of copyrighted data will sometimes produce verbatim snippets that reflect their training data.

So when it comes to copyright infringement, are we moving the goalposts to where merely learning from copyrighted material is already infringement? I'm not sure I want to go there.

I think you're looking for consistency that the legal system just doesn't provide. The music industry is more organised and litigious than the software industry and that gives them power that you and I don't have. If you called it "Napster 2.0" specifically you'd probably be prevented from shipping by a preliminary injunction. Is that fair or consistent? No. But it's the world we live in. Programmers want laws to be irrefutable and executable logic but they just aren't.

Now, IANAL, but iirc, that is all 100% okay and legal. In fact, I can even download copyrighted music and movies without issue. So, I don't even need to make sure I don't download anything under copyright.

The issue isn't downloading copyrighted stuff.

Rather, it's making available and letting others download it. That was where you got in trouble.

Knowingly downloading copyrighted material, say to get it for free, still violates the rights of the copyright holders. It's just that litigating against members of the public is bad PR and not exactly lucrative, especially when it's likely that kids downloaded the content.

People used to get busted from buying bootleg VHS and DVDs on the street before P2P filesharing was a common thing. Then, early on, people were sued for downloading copyrighted files before rightsholders decided to take a different legal strategy to go after sharers and bootleggers.

Yep. That's exactly why Bittorrent clients can exist.

Isn’t that already how everything on the internet works?

I think it's arguably how anything works. You can have a fork, but if you stab it in someones eye that's on you.

Yes that would be okay. It would also be okay to create Internet 2.0.

That's basically the situation for any torrent client

Well, if the trackers also hosted mixed-up blocks of data for all the torrents they tracked and their protection was "LOL make sure you don't accidentally download any of these tiny data blocks in the correct order to reconstruct the copyrighted material they may be parts of wink"

You mean like every torrent client that currently exists?