> that then reproduces near replica's of my code

Copying a few lines is not the same as copying the whole thing. Sharing quotes from a book is not copyright infringement.

If your intent is to create a competing product for profit, chances are that won't be found as fair use, given that determining fair use depends on intent and how the content is used.

Using clips from a movie in a movie review is probably fair use.

Using clips from a movie in knock-off of that movie for profit? Probably not fair use if it's not a parody.

Copilot is not like a movie reviewer using clips to review a movie. Copilot is like a production team for a movie taking clips from another movie to make a ripoff of that movie and selling it.

Interesting analogy.

Consider every repo on github to be a movie. Copilot is taking individual frames out of every movie on github and composting them into a new film.

I think most of us would agree that individually, each frame is copyrighted. But what if you take one frame from a million different movies and put them in an order that produces a new coherent movie?

The core question we need to settle in court is: does the new movie become its own copyrightable work, or is it plagiarism?

The question was basically settled with music sampling:

https://en.wikipedia.org/wiki/Sampling_(music)#Legal_and_eth...

I.e. any use without permission is illegal.

You're mistaking the end-user's copyright infringement with Copilot's alleged infringement.

Copilot is fair use and transformative -- that is unless there is an open source Copilot that Copilot is training on, only then would it be competing and it's easy for GitHub or OpenAI to exclude those repos of copilot alternatives from the training set.

> Copilot is like a production team for a movie taking clips from another movie to make a ripoff of that movie and selling it.

I can't think of a 5 line snippet I've written or read that makes sense to claim ownership of. They don't stand on their own in the way even a 30s movie clip does.

I dont think that's comparable. For starters, its not just the length of a quote that makes it fair use, but the way quotes are used i.e. to engage in commentary.

> Sharing quotes from a book is not copyright infringement.

It is if I take those quotes and publish them as my own in my own book.

I don't think this is possible for co-pilot to do?

(If it was, please tell me how, since that would save me $5/year across multiple libraries..!)

I don't believe it does anything with private repos and that isn't what is being alleged.

It's the license that matters, not whether the code is visible on Microsoft's website.

Code which anybody can view is called "source available". You aren't necessarily allowed to use the code, but some companies will let their customers see what is going on so they can better integrate the code, understand performance implications, debug and fix unexpected issues, etc. The customers would probably face significant legal risks if they took that code and started to sell it.

"Open source" code implies permission to re-use the code, but there is still some nuance. Some open-source licenses come with almost no restrictions, but others include limiting clauses. The GPL, for example, is "viral": anybody who uses GPL code in a project must also provide that project's source code on request.

What do you think the chances are that Microsoft would surrender the Copilot codebase upon receipt of a GPL request?

But that isn’t what is being alleged