> Microsoft GitHub is the largest collection of open source code in the world. Microsoft GitHub is in a unique and dominant positions to host and access and distribute most of the open-source code in the world
No, it's not in a "unique and dominant position". Open source code is freely available online, it's almost trivial to build a bot to scrape OS code from anywhere on the web (GitHub included).
The comparison to the Google Books antitrust falls down completely, Google had a dominant position because it had the resources to scan all books. Anyone can build a collection of almost all open source code.
Further to that, all these models (GPT and Image generation) are trained on scraped data, trying to suggest that only GitHub/Microsoft could do it defeats the purpose of trying to establish what the legal rights are over training models with scraped data.
We need test cases and precedent, but trying to use this as one is not going to work.
> Google had a dominant position because it had the resources to scan all books.
I thought Google had a dominant position because they signed an exclusive deal with the authors guild that explicitly gave them a dominant position.
Anyone else could set up a project to go round libraries and scan books. Google has put more money into it than other organisations, but The Internet Archive has about 20 million scans (https://archive.org/details/texts).
There certainly are other spaces where open source code is hosted and available, but the default for most is GitHub. I think it's in a similar position to Google 10 years ago. Sure there are other search engines, but Google is by and large the standard one.
That does put Microsoft in the unique position to have direct unfettered access to any and all open source code on GitHub without restrictions. Unless you or I get the same kind of direct access without rate limiting and antibot protection, then they do dominate and have an advantage over everyone else.
> No, it's not in a "unique and dominant position". Open source code is freely available online, it's almost trivial to build a bot to scrape OS code from anywhere on the web (GitHub included).
Absolutely wrong. GitHub is doing way more than just hosting code. It hosts bugtrackers, CI and much more. For most FOSS project it's the ONLY place where you can go and submit a bug report.
It's not just a repository, it's a communication tool and refuses to interoperate with other platform.
This is monopoly, just like NPM and Linkedin. Microsoft never changes.
Microsoft GitHub has access to all the commits you force pushed away or branch you deleted. We have no reason to believe that it’s actually gone with no transparency and the source code being closed.
> The comparison to the Google Books antitrust falls down completely, Google had a dominant position because it had the resources to scan all books. Anyone can build a collection of almost all open source code.
Copying a file is not the same thing as "scanning" a book. To scan you first need to get your hands on the book (the download part) and then use industrial scanners to scan them. So apple-apple comparison here is scanning <-> training & scanned collection of books <-> trained model, and finally the portals to the loot: Google Books <~> Github+VSC.
Not everyone has the resources to actually process -- that is train the 'model' -- using the publicly available 'data'. Most also don't also own Github and VSC platforms to field their model. In fact, is anyone other than microsoft in a position to both scrape OSS, train a coding AI, and then include that tool in dominant software development platforms?
That someone reads my code I expect. That someone reads my code and uses it to train a machine they money off I didn't expect, but I also can't say I object.
However, that part of the argument feels like the less interesting CoPilot legal argument. The interesting one is: what's the license for use of the code it spits out? Any time CoPilot spits out a nontrivial piece of code that a) exists verbatim on Github and b) is nontrivial enough to be copyrightable, then what happens? Just because it was chewed through the machine doesn't magically wipe the original GPL/MIT/BSD license it had on GitHub. CoPilot doesn't represent a "clean room".
Large companies tend to be extremely skittish about devs using IP they don't have rights to. I lived under a rule of "No open source licensed thing , at all, anywhere" for years in the early 2000. Later, the rules are relaxed and obviously everyone uses MIT/BSD type stuff in commercial products these days, but management is still nervous about things like Stackoverflow answer code being copied verbatim (Still verboten). So how can - if I understand things correctly - CoPilot be allowed or encouraged at such places now? Wouldn't exactly the same worry about nontrivial StackOverflow snippets apply to CoPilot produced code?
> “If GitHub can produce code by training an AI on all code it is hosting, Youtube could produce videos and music by training an AI on all content it is hosting, the Writer Guilds could produce books by training an AI on all books it owns the rights for, Shutterstock could produce more stock images by training an AI on all stock images it is hosting.”
There is a subtle difference here. Microsoft isn’t just producing code based on GitHub data. They are producing a tool that lets others generate code based on GitHub data. I do think consideration of the source data creators intent is important- and there is a case CoPilot hasn’t done that. But if Shutterstock wants to use any images _that they have been given license for and treat creators fairly for_ to build a tool that lets others generate images, they should be allowed.
Also, the op argues only MS has access to train based on all of GitHub. Others might run into rate limiting etc. However we know Amazon and others do have similar models. This would indicate MS may have a competitive edge but not a full market lockout.
Historically, Microsoft -- itself an entity plagued with anti-trust sentiment in the past -- slagged the GPL in public for years, but was unable to do anything about its ascent and propagation.
Now they may have found a way. And that I think is the potential anti-trust issue here.
What is one of the main obstacles to Microsoft's monopoly dominance in the software sphere? The Linux kernel, it's everywhere. And it's under the GPL, a license explicitly resistant to "Embrace, extend, and extinguish" (old school Gates/Balmer MS). Microsoft right now is not emphasizing an anti-Linux, anti-GPL focus, but it clearly has in the past and it (and others) could definitely do so again in the future.
Systems like CoPilot have the potential to be for the GPL (or other copyleft type licenses) what cryptocurrency 'mixers' or 'tumblers' are to money laundering laws. A potential to be an automated way to pull pieces of IP out of those licenses and into other codebases without respecting the obligations that go with it.
A lot of the dialog on here and other threads on this forum in the past shows me that understanding of copyleft licenses among the open source and developer community is really low right now. This is the license that the Linux kernel is licensed under, it is extremely important. There should be better recognition of the rights and responsibilities afforded by it.
The GPL was explicitly formulated as a way to protect portions of the hobbyist and free software community from potentially predatory commercial interests. Remember it's always possible to attempt to negotiate a commercial non-copyleft license with an entity that has released its source under the GPL. But if you don't, you have to respect its distribution requirements. It's fine to be personally opposed to using the GPL for your own work, but it is important to understand the obligations that come with it. And that includes systems that harvest data from it automatically.
If you’re curious, the case continued in different directions and reached important decisions regarding books, I won’t get into them because they are not relevant to GitHub. (Google being allowed or not allowed to show a one page preview of a book, to a user who was looking for a quote from a book, is not directly applicable to the concerns surrounding GitHub and GitHub Copilot)
Spoiler alert: Google was copying books in a manner considered fair use, consistent with Sony v Universal. I’m not sure why this author thinks this is irrelevant. The Federal court system surely won’t!
>Open source code on GitHub might be thought of as “open and freely accessible” but it is not. It’s possible for any person to access and download one single repo from GitHub. It’s not possible for a person to download all repos from Github or a percentage of all repos, they will hit limitations and restrictions when trying to download too many repos. (Unless there’s some special archives or mechanisms I am not aware of).
There actually is a convenient archive for accessing GitHub-hosted code in bulk. All GitHub source code is available for bulk analysis in Google BigQuery.
When I published stuff to GitHub, it had open licenses: i wanted anyone and everyone to make whatever use of it they could. I didn't foresee this use, and I'm not fond of Microsoft (to say the least); but it certainly falls into the area of things I explicitly allowed when publishing.
I suspect many others who publish there feel the same way.
Perhaps your license permits CoPilot reuse, but that is not every F/OSS license. There are some which require attribution of the original authors. There are some which require the distributor to make available any source code, and any modifications made to the software.
Software authors are not upset about the mere reuse of their code, it's the violations of such license terms that are problematic. If attribution is required, but neglected or impossible, that's typically known as "plagiarism", you know.
Every creator and author has their own idea of what they want and do not want. A license is rarely ever comprehensive enough to cover all of it, and as time goes on those ideas can also change with the author.
Best thing you can do now is start porting projects over elsewhere leaving history behind on that platform pointing users to the new home/mirrors. You could also consider a different license. I hope the FSF comes up with an exception like they did in the A of AGPL about how LLMs can use the data (or require the data to be open, etc.).
Well, I certainly had some expectations that are covered in the license. I.e that derivative work is a subject of some constraints and that copyrights are not removed from the code.
Because open source developers, either individuals or companies can't even possibly entertain the idea of the legal expenses involved in fighting a behemoth like Microsoft.
Microsoft GitHub Co-pilot could be viewed entirely as just a more sophisticated indexer and search interface, a indexer of freely available source code on the public internet.
The concerns over copyrighted material ingested and exposed through AI system are the same for copyrighted material ingested by and displayed by our web 2.0 search engines.
So, Microsoft GitHub Co-pilot also indexes publicly accessible content but emits that content differently, however it does not exercise exclusive rights over what it indexes or control access to that content.
The Google Books and Author Guilds axis would have given exclusive monopoly access, distribution, and pricing of the largest collection of digital books in the world – so I don’t believe the comparison between the Google Books project and CoPilot is valid, because we have already accepted the concept of indexing and clipping content on the public internet.
If you don't want your code to be public, licence it... You can put a licence.txt in your code, but people will ignore it. If you really don't want your code to be in public, don't publish it at all.
I personally think Copilot is training on all the code. It's not verifiable so I go with the worst case scenario. But it shouldn't be a problem if you don't publish code that's licensed.
Lines of code shouldn't even be copyrightable. But that's a whole other discussion.
Because they'll (Microsoft and Github) ultimately be crushed by copyright infringement claims (even the most liberal oss licenses require attribution, which no one seems to be accommodating)? Why bother mounting an expensive antitrust campaign when The Mother of All DMCA takedowns is on its way?
I'd rather regulators go after drug companies, medical insurance and hospital systems with antitrust lawsuits for their cartel than an emerging field that provides "nice to have" toys at this point.
The agencies know fighting MSFT is a costly undertaking. They learned that in 90/00s. They will only do it if there’s enough public support. Threshold is incredibly high for MSFT.
Obligatory, “Was this article written by chatgpt?”
It’s not antitrust because GitHub isn’t a monopoly. And copilot only scanned public repos, so anyone could train, if they like.
Also this isn’t like the Google Books case because Google made the books available, violating copyright. GitHub has not made the code available. So these cases aren’t similar and aren’t antitrust.
Although comically, by using GitHub I grant them copyright to publish my public repo so I suppose they could republish my repo in other ways without any additional permission. It would be interesting if their license allows them to rebounder and publish my repos in a book or something.
Antitrust is one thing, but by cleanroom implementation standards (one team reads the source and writes a spec, another team writes the code) CoPilot is illegal to begin with.
CoPilot reads and rearranges the IP that was created by millions of people who were working very hard and did not anticipate a code laundering machine when they wrote the code and the licenses.
That's quite an extreme set of statements, and I very much doubt what you consider "illegal" is actually illegal.
When you publish something for others to view (text, images, code, whatever), others are allowed to view it. You can't anticipate how others view it, with their eyes or with screenreaders to assist. You can't stop them from reading it, thinking about it, discussing it with their friends, taking notes, summarizing it. You can't stop people from learning from your published content or recognizing patterns between it and other similar things.
Sorry, but you can't create a license that says "I will allow you to view this but you cannot learn from it. If you learn from it, you need to pay me."
Clean room is not the actual requirement for avoiding copyright infringement in reverse engineering. There have been several notable cases in which clean room practices were either not followed or outright disregarded, but the resulting product was considered to be non-infringing anyway[0].
Furthermore, while lots of hard work was put into the code that CoPilot used, that hard work was specifically donated with the intent that the code be reused. The only hard requirement being that the code remain free. The thing people are angry about with CoPilot is that it's a hosted OpenAI product with no freely-available model weights, and that generated code might be regurgitated from training data in some cases[1]. If CoPilot was actually open AI, nobody would be suing over it.
[0] In Sony v. Connectix, it was found that Connectix actually tried clean-room, black-box analysis of the PlayStation ROM, but abandoned it in favor of disassembling the whole thing. Connectix was still ruled non-infringing.
[1] Most egregiously, the comment "evil floating point bit level hacking" will make it spit out Quake III source. Microsoft worked around this by explicitly banning that particular phrase, which is just stupid.
What a ridiculous article. Copilot does not violate antitrust law. GitHub is not a monopoly just because open source devs choose to host there. Devs are free to use GitLab or whatever.
Comparing this to Google Books is silly. Google stole copyrighted books. Copilot uses freely shared open source code. No copyright issue.
The article claims "Open source code on GitHub might be thought of as 'open and freely accessible' but it is not." Lol what? The MIT and Apache licenses explicitly allow reuse. Copilot can absolutely use open source data.
This is typical hype and FUD. No evidence Copilot even used all of GitHub's data or violated any licenses. Baseless speculation.
There's no real antitrust argument here. Nothing to see, move along. yawn
> The MIT and Apache licenses explicitly allow reuse
> No evidence Copilot [...] violated any licenses
Both of these allow redistribution _if you include the license_. Copilot doesn't include any licenses in the code it distributes. You can argue whether that's fair use or not, but you can't argue that it doesn't respect the license.
With the AGPL3 license requiring derivatives operating over a network to disclose their source code (my rough summarisation), does that mean GitHub Copilot should be publishing its source code publicly somewhere?
samwillis|2 years ago
No, it's not in a "unique and dominant position". Open source code is freely available online, it's almost trivial to build a bot to scrape OS code from anywhere on the web (GitHub included).
The comparison to the Google Books antitrust falls down completely, Google had a dominant position because it had the resources to scan all books. Anyone can build a collection of almost all open source code.
Further to that, all these models (GPT and Image generation) are trained on scraped data, trying to suggest that only GitHub/Microsoft could do it defeats the purpose of trying to establish what the legal rights are over training models with scraped data.
We need test cases and precedent, but trying to use this as one is not going to work.
Edit:
It took me 15 seconds to find that there is a Google Big Query dataset of open source code for GitHub: https://cloud.google.com/blog/topics/public-datasets/github-...
and thats been further curated on Hugging Face: https://huggingface.co/datasets/codeparrot/github-code
GitHub / Microsoft do not have a monopoly on this data.
rjmunro|2 years ago
I thought Google had a dominant position because they signed an exclusive deal with the authors guild that explicitly gave them a dominant position.
Anyone else could set up a project to go round libraries and scan books. Google has put more money into it than other organisations, but The Internet Archive has about 20 million scans (https://archive.org/details/texts).
mschild|2 years ago
That does put Microsoft in the unique position to have direct unfettered access to any and all open source code on GitHub without restrictions. Unless you or I get the same kind of direct access without rate limiting and antibot protection, then they do dominate and have an advantage over everyone else.
jackdaniel|2 years ago
goodpoint|2 years ago
Absolutely wrong. GitHub is doing way more than just hosting code. It hosts bugtrackers, CI and much more. For most FOSS project it's the ONLY place where you can go and submit a bug report.
It's not just a repository, it's a communication tool and refuses to interoperate with other platform.
This is monopoly, just like NPM and Linkedin. Microsoft never changes.
bilqis|2 years ago
marginalia_nu|2 years ago
Seems like a logistical nightmare to me. Git repos interact spectacularly poorly with web scraping in general.
toastal|2 years ago
cassianoleal|2 years ago
I imagine you meant "precedent".
eternalban|2 years ago
Copying a file is not the same thing as "scanning" a book. To scan you first need to get your hands on the book (the download part) and then use industrial scanners to scan them. So apple-apple comparison here is scanning <-> training & scanned collection of books <-> trained model, and finally the portals to the loot: Google Books <~> Github+VSC.
Not everyone has the resources to actually process -- that is train the 'model' -- using the publicly available 'data'. Most also don't also own Github and VSC platforms to field their model. In fact, is anyone other than microsoft in a position to both scrape OSS, train a coding AI, and then include that tool in dominant software development platforms?
alkonaut|2 years ago
However, that part of the argument feels like the less interesting CoPilot legal argument. The interesting one is: what's the license for use of the code it spits out? Any time CoPilot spits out a nontrivial piece of code that a) exists verbatim on Github and b) is nontrivial enough to be copyrightable, then what happens? Just because it was chewed through the machine doesn't magically wipe the original GPL/MIT/BSD license it had on GitHub. CoPilot doesn't represent a "clean room".
Large companies tend to be extremely skittish about devs using IP they don't have rights to. I lived under a rule of "No open source licensed thing , at all, anywhere" for years in the early 2000. Later, the rules are relaxed and obviously everyone uses MIT/BSD type stuff in commercial products these days, but management is still nervous about things like Stackoverflow answer code being copied verbatim (Still verboten). So how can - if I understand things correctly - CoPilot be allowed or encouraged at such places now? Wouldn't exactly the same worry about nontrivial StackOverflow snippets apply to CoPilot produced code?
EamonnMR|2 years ago
vinaypai|2 years ago
The author seems very confused and is mostly talking about copyright claim and then bizarrely starts talking about antitrust litigation.
shireboy|2 years ago
There is a subtle difference here. Microsoft isn’t just producing code based on GitHub data. They are producing a tool that lets others generate code based on GitHub data. I do think consideration of the source data creators intent is important- and there is a case CoPilot hasn’t done that. But if Shutterstock wants to use any images _that they have been given license for and treat creators fairly for_ to build a tool that lets others generate images, they should be allowed.
Also, the op argues only MS has access to train based on all of GitHub. Others might run into rate limiting etc. However we know Amazon and others do have similar models. This would indicate MS may have a competitive edge but not a full market lockout.
shanebellone|2 years ago
Grand Upright Music, Ltd. v. Warner Bros. Records, Inc.
https://en.wikipedia.org/wiki/Grand_Upright_Music,_Ltd._v._W....
FeepingCreature|2 years ago
Looks like it's in the EU as well.
edit: Hm, Pelham v Hütter C-476/17 might offer some grace for mashups under the quotation exemption at least. Though I wouldn't rely on that.
cmrdporcupine|2 years ago
Now they may have found a way. And that I think is the potential anti-trust issue here.
What is one of the main obstacles to Microsoft's monopoly dominance in the software sphere? The Linux kernel, it's everywhere. And it's under the GPL, a license explicitly resistant to "Embrace, extend, and extinguish" (old school Gates/Balmer MS). Microsoft right now is not emphasizing an anti-Linux, anti-GPL focus, but it clearly has in the past and it (and others) could definitely do so again in the future.
Systems like CoPilot have the potential to be for the GPL (or other copyleft type licenses) what cryptocurrency 'mixers' or 'tumblers' are to money laundering laws. A potential to be an automated way to pull pieces of IP out of those licenses and into other codebases without respecting the obligations that go with it.
A lot of the dialog on here and other threads on this forum in the past shows me that understanding of copyleft licenses among the open source and developer community is really low right now. This is the license that the Linux kernel is licensed under, it is extremely important. There should be better recognition of the rights and responsibilities afforded by it.
The GPL was explicitly formulated as a way to protect portions of the hobbyist and free software community from potentially predatory commercial interests. Remember it's always possible to attempt to negotiate a commercial non-copyleft license with an entity that has released its source under the GPL. But if you don't, you have to respect its distribution requirements. It's fine to be personally opposed to using the GPL for your own work, but it is important to understand the obligations that come with it. And that includes systems that harvest data from it automatically.
williamcotton|2 years ago
Spoiler alert: Google was copying books in a manner considered fair use, consistent with Sony v Universal. I’m not sure why this author thinks this is irrelevant. The Federal court system surely won’t!
htpltr|2 years ago
Displaying book excerpts also:
- Leaves the attribution and copyright intact.
- Is not intended to use excerpts verbatim or slightly modified, unless quoting them with attribution.
- May increase the sales of the book.
I agree with the OP of the submission that this case is entirely irrelevant for the CoPilot situation.
mtlynch|2 years ago
There actually is a convenient archive for accessing GitHub-hosted code in bulk. All GitHub source code is available for bulk analysis in Google BigQuery.
https://cloud.google.com/blog/topics/public-datasets/github-...
I still don't support GitHub training Copilot on other people's code without permission, but this particular part of OP's argument is incorrect.
h2odragon|2 years ago
I suspect many others who publish there feel the same way.
NoZebra120vClip|2 years ago
Software authors are not upset about the mere reuse of their code, it's the violations of such license terms that are problematic. If attribution is required, but neglected or impossible, that's typically known as "plagiarism", you know.
belorn|2 years ago
toastal|2 years ago
marginalia_nu|2 years ago
jackdaniel|2 years ago
scarface74|2 years ago
> didn't foresee this use
So you really didn’t want any use. You just wanted the use you found acceptable? So you didn’t really want it to be “open”
elzbardico|2 years ago
gumballindie|2 years ago
pelasaco|2 years ago
dagaci|2 years ago
The concerns over copyrighted material ingested and exposed through AI system are the same for copyrighted material ingested by and displayed by our web 2.0 search engines.
So, Microsoft GitHub Co-pilot also indexes publicly accessible content but emits that content differently, however it does not exercise exclusive rights over what it indexes or control access to that content.
The Google Books and Author Guilds axis would have given exclusive monopoly access, distribution, and pricing of the largest collection of digital books in the world – so I don’t believe the comparison between the Google Books project and CoPilot is valid, because we have already accepted the concept of indexing and clipping content on the public internet.
unknown|2 years ago
[deleted]
supriyo-biswas|2 years ago
[1] https://githubcopilotlitigation.com/case-updates.html
pelasaco|2 years ago
dncornholio|2 years ago
I personally think Copilot is training on all the code. It's not verifiable so I go with the worst case scenario. But it shouldn't be a problem if you don't publish code that's licensed.
Lines of code shouldn't even be copyrightable. But that's a whole other discussion.
ncphil|2 years ago
ok123456|2 years ago
lvl102|2 years ago
jdavis703|2 years ago
bionhoward|2 years ago
kohlerm|2 years ago
prepend|2 years ago
It’s not antitrust because GitHub isn’t a monopoly. And copilot only scanned public repos, so anyone could train, if they like.
Also this isn’t like the Google Books case because Google made the books available, violating copyright. GitHub has not made the code available. So these cases aren’t similar and aren’t antitrust.
Although comically, by using GitHub I grant them copyright to publish my public repo so I suppose they could republish my repo in other ways without any additional permission. It would be interesting if their license allows them to rebounder and publish my repos in a book or something.
htpltr|2 years ago
CoPilot reads and rearranges the IP that was created by millions of people who were working very hard and did not anticipate a code laundering machine when they wrote the code and the licenses.
unreal37|2 years ago
When you publish something for others to view (text, images, code, whatever), others are allowed to view it. You can't anticipate how others view it, with their eyes or with screenreaders to assist. You can't stop them from reading it, thinking about it, discussing it with their friends, taking notes, summarizing it. You can't stop people from learning from your published content or recognizing patterns between it and other similar things.
Sorry, but you can't create a license that says "I will allow you to view this but you cannot learn from it. If you learn from it, you need to pay me."
kmeisthax|2 years ago
Furthermore, while lots of hard work was put into the code that CoPilot used, that hard work was specifically donated with the intent that the code be reused. The only hard requirement being that the code remain free. The thing people are angry about with CoPilot is that it's a hosted OpenAI product with no freely-available model weights, and that generated code might be regurgitated from training data in some cases[1]. If CoPilot was actually open AI, nobody would be suing over it.
[0] In Sony v. Connectix, it was found that Connectix actually tried clean-room, black-box analysis of the PlayStation ROM, but abandoned it in favor of disassembling the whole thing. Connectix was still ruled non-infringing.
[1] Most egregiously, the comment "evil floating point bit level hacking" will make it spit out Quake III source. Microsoft worked around this by explicitly banning that particular phrase, which is just stupid.
williamcotton|2 years ago
Class structure, file structure, APIs…
amoss|2 years ago
19h|2 years ago
Comparing this to Google Books is silly. Google stole copyrighted books. Copilot uses freely shared open source code. No copyright issue.
The article claims "Open source code on GitHub might be thought of as 'open and freely accessible' but it is not." Lol what? The MIT and Apache licenses explicitly allow reuse. Copilot can absolutely use open source data.
This is typical hype and FUD. No evidence Copilot even used all of GitHub's data or violated any licenses. Baseless speculation.
There's no real antitrust argument here. Nothing to see, move along. yawn
tpxl|2 years ago
> No evidence Copilot [...] violated any licenses
Both of these allow redistribution _if you include the license_. Copilot doesn't include any licenses in the code it distributes. You can argue whether that's fair use or not, but you can't argue that it doesn't respect the license.
justinclift|2 years ago