Why is this? Copilot in some ways is an automated way to search code & stack overflow. There is a very annoying website that does nothing more than show relevant code samples of various google search terms.
If the manual version of something is okay (eg: googling for code, finding it, fitting for a new and specific purpose that is similar), why would an automated version of that be any different?
Or sending millions of messages in an automated way can be illegal but millions of people sending a message is not.
The million messages example is interesting. Though, what examples are there? In what cases is something legal to do it once, but there is some threshold where you cannot do it many times?
The "sending millions of messages" is only perhaps illegal because it breaks terms of service. Or, the one message is perhaps also illegal but nobody cares to pursue litigation for one instance of an infraction. The point remains though, if an individual does something once that is legal - it makes that activity legal, period and full stop. No?
Note that my main objection is to equating a person doing something with an automated process. Sometimes it may be legal or other times illegal but it just clearly isn’t the same.
For the last point, I think the answer to that is a definite no in most jurisdictions. Laws and judicial conventions often allow differing circumstances to affect the legality of things.
The reason is always the same. Courts and judges will look at the situation and make a decision about what seems fair and what does not. It is them that need to be convinced that a specific use of a copyrighted work is permitted either through fair use or by a license.
Interesting analogy. "Ripping" something off an only using it for your personal project sounds like the "playing a movie for a few friends". Doing so for the benefit of corporation that then has thousands of daily visitors sounds like the "movie cinema" example. Though, in both cases it was an individual googling and finding how to implement a specific function.
"fair use" in copyright is pretty specific in that it refers to things like "you can play portions of a clip in order to comment on it." Or as another example, you can use clips/portions for the purposes of a review commentary.
"Form and function" is perhaps a very important crux here. Some things you can only do a certain way. For example, quick-sort, there are is only really one way to implement quick sort (or otherwise it is not at all quick sort!).
Personally I feel the copyright line is higher than a function, the copyright is on the collection of functions who together create a specific software. The individual functions IMHO are as copyright'able as-is a cog on a bike cassette, or the chain on a motorcycle.
Fair use seem to had a change in scope. Historically it seems to be mostly about things like "play a clip in order to comment on it.", but now we have things like google making a copy of all books ever written in order for people to search through them. Similar arguments has been made over copying news articles from news sites in order to put a portion of it in search results. A stack overflow-like search engine that trawled proprietary code bases would likely be sued, but in theory they could argue fair use just like google.
