Suing Microsoft for training Copilot on your code would require jumping over the same hurdle that the Authors Guild could not: i.e. that it is fair use to scan a massive corpus[0] of texts (or images) in order to search through them.
My real worry is downstream infringement risk, since fair use is non-transitive. Microsoft can legally provide you a code generator AI, but you cannot legally use regurgitated training set output[1]. GitHub Copilot is creating all sorts of opportunities to put your project in legal jeopardy and Microsoft is being kind of irresponsible with how they market it.
[0] Note that we're assuming published work. Doing the exact same thing Microsoft did, but on unpublished work (say, for irony's sake, the NT kernel source code) might actually not be fair use.
[1] This may give rise to some novel inducement claims, but the irony of anyone in the FOSS community relying on MGM v. Grokster to enforce the GPL is palpable.
My real worry is downstream infringement risk, since fair use is non-transitive. Microsoft can legally provide you a code generator AI, but you cannot legally use regurgitated training set output[1]. GitHub Copilot is creating all sorts of opportunities to put your project in legal jeopardy and Microsoft is being kind of irresponsible with how they market it.
[0] Note that we're assuming published work. Doing the exact same thing Microsoft did, but on unpublished work (say, for irony's sake, the NT kernel source code) might actually not be fair use.
[1] This may give rise to some novel inducement claims, but the irony of anyone in the FOSS community relying on MGM v. Grokster to enforce the GPL is palpable.