There are far more current precedents that apply here, and they do not trend in Github's favor -- as I noted previously, Williams v. Gaye (9th Cir. 2017) is going to be very interesting in this case. I am sure several people in Microsoft's legal department set parameters on the model training and that they felt that they were standing on solid ground, but I am also sure that there are a few associate professors in various law schools around the country who are salivating at the opportunity to take a run against this and make a name for themselves.