1. Since we're #FOSS developers, our tools should be #FreeSoftware too.
2. Monopolies are never a good idea.
3. By using a walled garden, we're excluding potential contributors.
4. By using #Microsoft products, we're supporting a producer of #tracking malware and an #NSA collaborator.
@Suiseiseki I don't “support” GitHub, I advocate against using it. The article simply explains why Copilot isn't illegal. Please understand the difference.
Call what Copilot does whatever you want; re-arranging the characters of a copyright-protected work doesn't constitute a copyright infringement whatsoever.
Those few excerpts that are copied verbatim are not copyright-protectable because they are too short for that (in 99% less than 150 chars). And yes, size isn't the only factor for copyright protection – even longer excerpts might be not protectable.
@Suiseiseki Compilers only translate the source code into machine code without changing anything about the funcionality, and they're so simple they're merely a tool of the programmer.
Well, “intellectual property” might be an oxymoron, but that doesn't change the fact that it's core to copyright law.
Author right's don't need to be overridden, GitHub just needs sufficient usage rights, which are in fact granted by the ToS.
Yes, uploading copyleft works to a third-party service, whose ToS aren't copyleft-compliant, is most likely a copyright infringement by the uploader.
@Suiseiseki The SFC's lawyers absolutely do know “a hell of a lot” more than me, but that doesn't change anything about the legal situation, you know? Funny how, for some reason, you seem to think that a billion-dollar company has not made sure not to risk tons of lawsuits.
Also, you might be interested in this paper by John A. Rothchild, Professor of Law, Wayne State University, and Daniel H. Rothchild, PhD candidate, University of California, who argue that “Copilot and its developer-customers likely do not infringe developers’ copyrights”: https://www.fsf.org/licensing/copilot/copyright-implications-of-the-use-of-code-repositories-to-train-a-machine-learning-model
There are regularly instances of F-Droid apps (even the F-Droid store itself) being sold on Google Play by third parties, sometimes even including ads and trackers. You might find that a great example of software freedom but I don't.
@Suiseiseki If you knew what the term “proprietary” means, you'd understand that something like “proprietary licences” doesn't exist: https://forgoodeyesonly.codeberg.page/blog/2022/06/a-defence-of-ethical-licencing/#there-are-no-proprietary-licences
The main purpose of the For Good Eyes Only Licence is banning privacy invasions, for example by including third-party trackers in the derivative work. It doesn't make sense to ban something (in this context) as “trivial” as GDPR violations but on the other hand not to care about something much worse like human rights infringements.
Copyleft prevents licensees from uploading derivative works to third-party services whose ToS aren't copyleft-compliant, which is basically a form of vendor lock-in.
If you think stricter copyright law would “strengthen copyleft”, you must be a troll. It would mean that trivial code fragments, like said implementation of the Fibonacci sequence, would be copyright-protected, so that it would be much more easy to unknowingly commit IP infringements. Read this for reference: https://felixreda.eu/2021/07/github-copilot-is-not-infringing-your-copyright
@Suiseiseki By definition, licences grant rights, therefore they can't reserve all rights (that's the default due to copyright law), which is exactly what “proprietary” means. “Proprietary” is not a synonym for “not OSD-compliant”.
Almost everyone who violates the GDPR is not something like a human rights violator or war criminal etc. For example, the German national railway company is currently being sued for violating the GDPR by including mandatory trackers in their app. According to the For Good Eyes Only Licence, that would also be a copyright infringement (if the app was a derivative work).
Almost every single content hosting platform has got ToS that allow them to use the content in ways that violate standard copyleft provisions. That's not unique to GitHub, but is also the case for GitLab and Gitea (servers). Therefore, if one is not a lawyer, the only way to make sure you don't commit a copyright infringement by re-distributing a copyleft work is not uploading derivative works to third-party services, but only to that service used by the original work. That is a de-facto vendor lock-in. It would be possible to host the code oneself on one's own server, but that's not an actual option for most developers.
@Suiseiseki “Yes, trivial code fragments are copyrightable”
That's plainly false. I'd suggest re-reading § 69a UrhG.
Regarding the ad-blocking stuff you're completely right. Your arguments are similar to the Hamburg regional court's argumentation why ad-blockers don't constitute copyright infringement.
@Suiseiseki “I'm talking about USA copyright”
Why then are you commenting on a blog article that deals with European law and uses German law as an example? (Also, FYI, the For Good Eyes Only Licence enforces the GDPR regardless of the licensee's jurisdiction.)
“use literally any git host without nonfree terms”
Can you name a few?
Yes, that's the one I meant. Though, the devil is in the details, particularly in the phrase “[... ] if they represent individual works in the sense that they are the result of the author’s own intellectual creation”. The terms “individual work” and “intellectual creation” both refer to the level of artistic creation necessary for copyright protection. And that level just isn't reached by short excerpts, according to common interpretation.
“Why do you keep trying to tell me about your nonfree license?”
I'm just replying to your criticism.
https://sh.ht only says “It works”. Codeberg's ToS don't grant Codeberg any usage rights in the first place (which I'd consider a huge risk for Codeberg).
“I don't care about common interpretation - I care what it actually says”
That's not how legal interpretation works, there are tons of literature on that.
Here are a few (German-only, sorry) articles that all agree that trivial software works aren't copyright-protected:
https://www.digital-recht.at/wann-ist-eine-software-urheberrechtlich-geschuetzt/ (note: Austrian law is very similar to German law)
@Suiseiseki I'm not talking about re-arrangements of the work, but of its characters. What I was referring to is that most of Copilot's outputs have nothing in common with the analysed code, other than the syntax of the programming language used.
There is no universal minimum length for copyright protection; it's always case-dependent and usually very complex. I mean, there could be two works of the same length; one of them might condense significant artistic value into minimal volume, while the other one is nothing but a bloat of uncreative, generic commands.
If you don't know you're infringing upon someone else's copyright, you aren't punished – but that doesn't make the copyright infringement itself legal.
Compilers: Hm, that's not exactly what I meant. I was more referring to the fact that compilers always produce “expected” outputs, or in other words: the same output for the same input.
“As long as the license has been complied with, any users can just strip garbage out”
Well, not only garbage, but dangerous garbage, that's the problem. I just don't want to allow anyone to misuse my creations for the purpose of harming others.
@Suiseiseki “yes you can be [punished], as copyright infringement is always a crime”
§ 15 StGB clearly says: “Unless the law expressly provides for criminal liability for negligent conduct, only intentional conduct attracts criminal liability.” And § 106 UrhG doesn't say anything about negligent conduct.
If you're saying that prohibiting the use of one's creations for the purpose of harming others is “tyrannical”, then, by your own logic, you must be a war crimes advocate.
Just like free speech doesn't mean you can say literally anything, software freedom shouldn't mean that you can use the software for literally any purpose – but only for those purposes that aren't destructive for society.
Have you heard of the paradox of tolerance (rhetorical question)?
@pixelcodeapps I'm pretty sure it violates a lot if not all foss licenses because it strips the license file from the code it distributes, modified or not.
Whether or not Github's ToS override license files the author added to the code is an interesting point. If they indeed do then the code authors are at fault for not catching that when creating their projects there and trusting their license agreement would be honored by both users as well as Github themselves.
@fedops The (re-)distributed excerpts are too small to be copyright-protected, so there's no need for keeping the licence files.
Yes, developers should be very careful about creating forks of copyleft-licensed on third-party platforms. In contrast, permissive licences don't introduce such problems in the first place.
@pixelcodeapps is that conjecture or a verifiable fact?
Unless there's a court decision (which I doubt there is) I'd say for example GPLv3 5a) and 5b) apply to anything non-trivial derived from Foss code taken from any repo.
The fact that they don't even attempt to keep track of which repo it was taken from and what license applied at the time leaves an additional sour taste.
I'd like to see someone change the license post-mortem and sue them for damages.
@fedops Not sure what you mean by “verifiable fact”. Please note that court rulings, especially those from lower instances, don't necessarily create certainty, since (a) judges are independent, (b) cases are different and (c) they only apply to one specific jurisdiction.
If the “derived” work doesn't contain an actual excerpt from the original code, in Germany this usage falls under § 44b UrhG which allows “text and data mining”; meaning that creating (non-trivial) works based on the *analysis* of copyright-protected code is not a copyright infringement, so there's no need to comply with the GPL in this case.
If the derived work does, in fact, contain actual excerpts from the original code, then it depends on whether those excerpts themselves reach a level of artistic creation that is high enough to fulfil the requirements of § 69a UrhG for copyright protection as a computer program: https://forgoodeyesonly.codeberg.page/blog/2022/07/why-github-copilot-doesnt-violate-free-licences/#copilot-outputs-dont-reach-the-necessary-level-of-creation
@pixelcodeapps yeah the latter case is the interesting one. If you can't trace a code snippet to something on github it doesn't really matter.
What I'm wondering (and IANAL which is why I'm asking about precedence) is whether this actually even falls under copyright law. Since we're not talking about copyright protection but what I would call legitimate use within the license established by the code author.
But I really don't know. All I know is don't trust microsoft, ever.
@fedops I really hope forge federation will soon be ready so that large FOSS projects won't be able to argue anymore that they “need GitHub because all the contributors are there”.
@me Yes, that's why I argue it's a copyright infringement to upload a fork of a copyleft-licensed project to a third-party service: https://forgoodeyesonly.codeberg.page/blog/2022/07/why-github-copilot-doesnt-violate-free-licences/#copyleft-promotes-monopoly