Copyright is not cooties. For something to be infringing it has to be beyond the de minimis threshold. It’s not enough to show that a copyrighted work influenced another work, there needs to be some substantial level of copying.
This music industry has been going through exactly this for the last few years and the courts have recognized that the creative process necessarily involves copying and that a small amount of copying is not infringement.
The de minimis threshold is shockingly low as seen in various successful lawsuits.
Critically it’s not just a question of what percentage of a work is a copy of the original but what of the original work was copied. IE copying 3 lines in a book is a tiny fraction of the book but if you coped half the poem it’s well past the de minimis threshold.
Similarly only a small percentage of a giant library of MP3’s comes from any one work, but that’s not relevant.
Exactly, but the kinds of things that Copilot is taking are necessarily very generic. It’s not going to be taking the “special sauce” from an open source project, because that is very unlikely to be the most probable continuation of any prompt that would occur in normal usage.
Copilot is taking things like “reverse a string” or “escape HTML tags”, that have very little originality to start with. This kind of common language is analogous to the musical motifs that have been also found to be under the threshold.
This music industry has been going through exactly this for the last few years and the courts have recognized that the creative process necessarily involves copying and that a small amount of copying is not infringement.