It's not illegal to come up with code that is exactly the same as an existing piece of copyrighted code.
It is illegal to take copyrighted code and reproduce and distribute it against its license, however.
It's the difference between original writing and plagiarism. You might come up with a substantially similar, to exact, point that other people have made. That's not illegal. Copying those points from a book verbatim is a copyright violation, however.
Copilot is reproducing copyrighted code from its training set. That's no different than you reading the leaked Windows source code and then copying it to ReactOS or WINE. But if you came with the same solution Windows developers happened to come up with, and it's just a coincidence, that's just fine.
> It's not illegal to come up with code that is exactly the same as an existing piece of copyrighted code.
That's not why it is not a copyright infringement to come up with code that is exactly the same as a piece of code that is the same as some other code.
"In computer programs, concerns for efficiency may limit the possible ways to achieve a particular function, making a particular expression necessary to achieving the idea. In this case, the expression is not protected by copyright."
It's because the code in question is most likely to only be written in one way.
If you happen to come up with the same melody and lyrics as a pop song in a "clean room" do you think you are in the clear? We're talking about copyright! It is meant to cover artistic expression! Not utilitarian inventions.
So the things that are covered by copyright in software are the creative choices... like, the overall structure of the code, the specific classes, and interfaces, etc. Like, there's a zillion ways to organize code (certainly some better than others!) and this is where clean-room design comes into play. It is really unlikely that in a decent sized codebase that the classes, or types, or whatever are going to be substantially similar.
While I know I am right about the current interpretation of how copyright applies to software I am also of the opinion that this is also how things aught to be.
I have yet to hear a persuasive argument otherwise.
Is it because I both write and publish open source code and write and publish music that I am able to clearly delineate idea from expression?
For one, I have never been satisfied with the non-utilitarian aspects of Copilot’s output. When I am writing software the real art has always been in how code is organized. I gain absolutely no aesthetic value from autocompleting unit tests or boilerplate.
You may think that the outputs of Copilot and Stable Diffusion are artistic in nature but all I see is a rhyming dictionary.
I look at attempts to have copyright cover the utilitarian aspect of software as an attempt to claim ownership over chord progressions, scales or time signatures.
It's not illegal to come up with code that is exactly the same as an existing piece of copyrighted code.
It is illegal to take copyrighted code and reproduce and distribute it against its license, however.
It's the difference between original writing and plagiarism. You might come up with a substantially similar, to exact, point that other people have made. That's not illegal. Copying those points from a book verbatim is a copyright violation, however.
Copilot is reproducing copyrighted code from its training set. That's no different than you reading the leaked Windows source code and then copying it to ReactOS or WINE. But if you came with the same solution Windows developers happened to come up with, and it's just a coincidence, that's just fine.