> The fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include ...
(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2)the nature of the copyrighted work; (3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4)the effect of the use upon the potential market for or value of the copyrighted work.
It's commercial, they use all of the code to built the model and the original code loses its value because you can get through Copilot. 3 of 4, depending on the original license it's 4 of 4 against fair use
That's not what "portion used" means. If you summarize a book then the portion used is <1%, not the entire book.
> the original code loses its value because you can get through Copilot
That's not even remotely true. You might get a fragment or two but you have to rebuild a program from scratch to replace it.
And as far as "nature of the copyrighted work" it's a completely different beast. It's a programming tool instead of whatever code was fed into it.
Only commerciality is a clear mark against it, and that factor is far from decisive by itself.
The original license of the code used to train on doesn't really matter to the fair use question, that only matters once the fair use defense fails and the court has to decide a remedy.
Also, there is a difference here. A fair use quote from another work is a reference. It's not the thing, it's referring to the thing.
When copilot takes a chunk of code from another work to put into yours, it's using the thing directly, or rather, you are by using it.
It lacks citation which a quote would have, and instead of being a quote to discuss the other work "Dr Foo once said <remarkable genius insight>" copilot is like you writing a novel and simply copying Dr Foo's remarkable genius insight.
The size of the snippet doesn't matter, it's the usage and the lack of citation.
Even a cheap-ass totally doable collective citation like getting all the contributors to agree to have their works included, and then having a big list of all contributors somewhwere, and then each user just needs to say "includes code from copilot collective" They don't even have that, which would be good enough.
