Well that is indeed the legal question to be answered. The post I replied to asserted the derivative nature.

The ability to copyright-launder via an API will lead to some interesting consequences for sure: I wouldn’t want to be elastic search or mongodb relying on source-available licensing if it comes about.

I thought everyone knew the person that reads the code can only describe it to someone else who writes the new code. Having the same party do it would make it a copy, if the purpose and construction is the same.

At least that's how compaq beat IBM and started all this monkey business.

Granted I could be full of it, I wasn't alive yet.

All intellectual property law is a tradeoff between efficiency and monetizability. It would be a huge productivity booster to copy/paste source code wholesale as well. Or to implement existing patents instead of having to work around them. But then the market for software would look very different than it does today.

If that's the future people want, that's fine - but everyone should play by the same rules.

When a computer is fed human-developed code and then reproduces it verbatim elsewhere (which copilot has been shown to do) it is called “copying”.