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I'd argue that people who open-source code expect other people to learn from it in a small way of snippets and that constitutes fair-use.
But if either of those are not true, then the GENERAL point is true and your point is not.
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Gais, gais, I downloaded the code using an automation tool called a browser, so it's fair use and not infringing!
yay for technicalities!
For open-source projects, CoPilot is in the realm of fair-use for snippets but it can be mis-used just like Github can be mis-used if someone blatantly copies a repository.
It doesn't void copyright.
Anyone that uses code that Copilot spits out which infringes on someone else's copyright is still liable. There's no requirement for intent. That may be a mitigating factor in terms of remediation, but it cannot void the copyright itself.
It can, however, produce a plague of completely ignorant copyright infringement, and since the user of Copilot has no idea where the code is coming from, there's no way to check if it was trained on infringing code.
If I used Copilot I would be real worried about the legal implications for me and that I could easily be accused of copyright infringement or plagiarism[*]. Of course people seem to not really care these days if they can cheat to get ahead so this is probably a feature, and 99.9% of user won't have their reputations ruined by using it.
[*] Although I'm personally more worried about the fact that most of the code will be wikipedia/blogs-quality and filled with bugs, edge cases and performance issues.
That's not how I interpret what's happening.
People who produce things have rights over their products. Be it artists, craftsmen, inventors, entrepreneurs or coders. There is a legitimate question here as to whether CoPilot has infringed upon those rights. I don't see it being about "making something illegal." I see it about answering a valid question as to whether CoPilot is liable for measurable damages caused to creators under existing laws.
But at that point, it would be just like someone cloning the Github code without following the license and in that case, it should become obvious that there is a clear violation harming the creators. But in most use cases of CoPilot, where-in people are just using it to build their own product, I doubt there is a cause for damages.