It's not a derivative of the presentation of the artistic elements of a work. It's derived from the technical working of a piece of software.
The elements of the software doing novel technical stuff might be patented, but copying the technical working is allowed. Copyright doesn't protect technical aspects.
If the project copies the UK of Skype, then that's a tort. If it copies the written code or uses the human reading of that code to derive a new codebase, then that's a tort. If it copies the technical implementation, how memory is accessed, what codecs are used, what packets are sent and when ... that's not copyright infringement.
No. It's not a derivative work. Creating a compatible piece of software is not copying. Even if you've seen the original code. If you're not literally copying and pasting code, it's fine.
Copyright protects the code itself from being copied, but the ideas, abstractions, overall design, and even individual APIs are not eligible for copyright protection
IANAL also. But it's important to distinguish a copy (which is just more or less copying what you read in C) vs a derivative work (a work that could not have been done or would have been done noticeably differently in the absence of the parent work existing). Just because you read Harry Potter 5 years ago and only now bother to write a fanfic in French using your memory of that world as a base, maybe keeping most names or subtly changing them a bit, does not mean your new work isn't derivative. It probably shouldn't be derivative given how much of our creative culture is remix upon remix, but hey, that's a much more extreme position that gets close to abolishing copyright entirely.
Code is just tricky though and metaphors for books and other things often break down easily... API / module substitution copyright seems silly, but maybe only to people who understand programming or who can grasp the metaphor that copyrighting an interface is like saying any book that uses numbered chapters (instead of custom named chapters) is a derivative work of the first book that used numbered chapters. Some code "could be but one way", naming included / irrelevant (I think a lot of SO code is like this, there are very few ways to glue together certain bits of code to do small thing X in context C), some of it is more like performance art, some of it is just almost pure math, and some of it works as a whole to solve one particularly hard problem which in itself has business value, just as music has business value by solving the problem of being appealing to listen to so that people buy it. Copyright law seems ill-equipped to handle it. Strategically though, I'd go with what the lawyers advise -- a lawsuit that I win can still be more costly than just playing it safe to begin with.
I would think copyright law would have something to say about what is or is not a derivative work. How similar to code snippets have to be (or claim to be) to be considered infringement on original source?
If this is newly written code not based on Skype code then there is clearly no copyright issue. Trademark is a potential problem but easily solved by removing the Skype name from the project.
I am neither a lawyer nor experienced with anything serious, but accordingly to how copyright is often a relevant topic in this "everyone is creator" era I believe that to be derivative you need to change the purpose.
rewriting the parser to make a background image for a desktop could be derivative as being "artistic" is not anywhere near the intention of the original creation. So the picture could be MIT and the code the picture shows GPL.
In general how you use something is more relevant than how you produce something. A human translation with heavy restructuring of the code and improvements can be derivative (maybe) putting it inside a pipeline (be it a transpiler or a contractor) wouldn't.
That article makes an interesting argument. If the code is for the purpose of interoperability, and the use does not prejudice the legitimate interest of the copyright holder, and it does not conflict with a normal exploitation of the program, and is independent software, then it may not be a derivative work.
It would take a very special situation when a company would rely on fulfilling all those conditions in order to use that as a legal defense.
Yes. Copyright covers exactly what's in their binaries, not anything you learn from their binaries.
I would argue that the opcodes in the binary are covered by copyright, but if you reverse-engineer those into C, that's your own creative work. Apparently Skype's lawyers did not see it this way, but why would they? If you're going to lie, you have to first convince yourself.
The second tweet in the thread seems badly off the mark in its understanding of copyright law.
> copyright does not only cover copying and pasting; it covers derivative works. github copilot was trained on open source code and the sum total of everything it knows was drawn from that code. there is no possible interpretation of "derivative" that does not include this
Copyright law is very complicated (remember Google vs Oracle?) and involves a lot of balancing different factors [0]. Simply saying that something is a "derivative work" doesn't establish that it's copyright infringement. An important defense against infringement claims is arguing that the work is "transformative." Obviously "transformative" is a subjective term, but one example is the Supreme Court determining that Google copying Java's API's to a different platform is transformative [1]. There are a lot of other really interesting examples out there [2] involving things like if parodies are fair use (yes) or if satires are fair use (not necessarily). But one way or another, it's hard for me to believe that taking static code and using it to build a code-generating AI wouldn't meet that standard.
As I said, though, copyright law is really complicated, and I'm certainly not a lawyer. I'm sure someone out there could make an argument that Copilot is copyright infringement, but this thread isn't that argument.
Edit: Note that the other comments saying "I'm just going to wrap an entire operating system in 'AI' to do an end run around copyright" are proposing to do something that wouldn't be transformative and therefore probably wouldn't be fair use. Copyright law has a lot of shades of grey and balancing of factors that make it a lot less "hackable" than those of us who live in the world of code might imagine.
Legal derivative works under copyright law of a particular computer program are not the same thing as programs which functionally interact with them -- functional interaction doesn't make a work derivative.
Lawyers are paid to make cases. Here, it's quite simple. The author of this code saw the Skype code, indeed he admits it. Then he wrote new code. Same person. Your honor, it is unreasonable for him to claim that his new code was not heavily influenced by what he had seen. It is like me listening to a song and then writing a new one "heavily inspired by it", and then claiming I'm not committing copyright infringement.
Lawyers make such arguments all the time and it comes down to who has the time & money to take them to court, and defend against them, and then the judge is a human who decides, and is heavily influenceable.
I'm not talking about copying but learning by reading code, you then synthesize the code you read surely you don't expect any copyright law to apply in such cases.
Suppose you and I work for the same company. I bust open Skype through decompilation, reading memory, the network, whatever trick I want. With that, I write documentation for how Skype's protocols work.
You read my documentation, and implement it in a new program. Since we haven't talked, and you've never seen a line of Skype's code, you haven't infringed on any copyrights.
It is important to note, though, that this does not necessarily protect us against a patent suit.
A lot of comments here keep drawing parallels to writing as for why this is right or wrong, but I think a more apt comparison would be music, where components like riffs or rhythms can be reused to make something wholly different. Many a musician has claimed IP infringement over another musician using similar melodies, but just like programming, if you look closely enough, you'll see that everyone is copying each other and there's not much that can be done to stop it.
Personally, I'm a bit bothered by this myself, but I'd be lying if I said I never once got any ideas by looking at the source code of a GPL project.
Copyright is the exclusive right to a particular creative expression, traditionally text. If you recreate the same functionality as another program without copying its text, there is no copyright violation. There may be patent infringement, but that's another matter.
Do you have some more details how it would be copyright infringing? I can't see what part of an implementation would be direct copied work, unless it's byte sequences etc.
"Derivative work" doesn't mean "a work made with knowledge of another work". WP explains, "In copyright law, a derivative work is an expressive creation that includes major copyrightable elements of an original, previously created first work (the underlying work)." Canonical examples include translations into another language, dramatizations of novels, or phonorecords of sheet music.
Algorithms, being purely functional, are not copyrightable in any country that I know of. So a new implementation that uses the same algorithm as the original, but without copying any of its non-functional aspects, is not a derivative work of the original and does not infringe its copyright.
Cleanroom reimplementation is a defense against allegations of copying, because under, for example, US copyright law, access plus substantial similarity is sufficient to show copying. The "He's So Fine" lawsuit is one of the most extreme examples of this doctrine. Cleanroom reimplementations are a defense against copying by eliminating the access element. But copying the functional aspects of a program does not meet the "substantial similarity" bar.
The elements of the software doing novel technical stuff might be patented, but copying the technical working is allowed. Copyright doesn't protect technical aspects.
If the project copies the UK of Skype, then that's a tort. If it copies the written code or uses the human reading of that code to derive a new codebase, then that's a tort. If it copies the technical implementation, how memory is accessed, what codecs are used, what packets are sent and when ... that's not copyright infringement.
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