I stated that they can do this, and asked if they could be sued if they used near-verbatim code generated from an LLM, just like they could be sued if they copy-pasted AGPL code.
Edit: Tools like CoPilot tell you if your code is similar to publicly available code so you can avoid these issues.
Edit: Just looked up EFF’s position and I tend to agree with it:
Artificial Intelligence and Copyright Law
Artists are understandably concerned about the possibility that automatic image generators will undercut the market for their work. However, much of what is criticized is already considered fair use under copyright law, even if done at scale. Efforts to change copyright law to transform certain fair uses into infringement carry serious implications, are likely to interfere with the innovative potential of AI tools, and ultimately do not benefit artists. In fact, the use of these tools could expand the capacity of artists to create expressive works. Policymakers should emphasize the importance of human labor and investment in what receives copyright protection to maintain wages and dignity. Artists should be protected from efforts by large corporations to both substitute their labor with AI tools and create a new, unnecessary copyright regime around AI-generated art.
Machine Learning is a Fair Use
The process of machine learning for generative AI art is like how humans learn—studying other works—it is just done at a massive scale. Huge swaths of data (images, videos, and other copyrighted works) are analyzed and broken into their factual elements where billions of images, for example, could be distilled into billions of bytes, sometimes as small as less than one byte of information per image. In many instances, the process cannot be reversed because too little information is kept to faithfully recreate a copy of the original work.
The analysis work underlying the creation and use of training sets is like the process to create search engines. Where the search engine process is fair use, it is very likely that processes for machine learning are too. While the act of analysis may potentially implicate copyright, when that act is a necessary step to enabling a non-infringing use, it regularly qualifies as fair use. If the intermediate step were not permitted, fair use would be ineffective. As such, when factual elements of copyrighted works are studied and processed to create training sets—which, once again, is how we humans learn and are inspired by themes and styles in art and other works—that is likely to be found a fair use.
dezmd