Microsoft, GitHub, and OpenAI are currently facing a lawsuit that accuses them of infringing upon licensed code in order to develop Copilot, a cloud-based AI tool that autocompletes code for software developers. Allegations have been made that they violated copyright laws by allowing Copilot to replicate licensed code without attribution.
Provided it is licensed properly, open-source code can be freely distributed and modified as long as the original author is credited and license terms are adhered to.
According to the plaintiffs, Microsoft and OpenAI have unlawfully used their code to train Copilot.
The three defendants are now attempting to dismiss this lawsuit.
They maintain that their usage of the code falls within the scope of fair use, and that the plaintiffs don’t have sufficient grounds to pursue this case as there is no evidence of damages. Aside from that, they argue that the lawsuit lacks legitimacy because it fails to identify which copyrighted works were allegedly infringed upon.
Can Code Be Copyrighted?
Source code and object code are both protected by copyright.
US copyright law treats code similarly to written works. As with any other original content, copyright protection automatically applies regardless of whether or not it is registered with the US Copyright Office. So, yes, this means that as soon as you write or record code on a tangible medium, for example, a hard drive, it is protected.
However, this kind of basic protection is not enough. It won’t allow you to sue for infringement or seek damages in the event someone copies, shares, or makes use of your code without your consent. In order to file a lawsuit against a party who infringes on your code, you must formally register it with the US Copyright Office.
Registering your code with the US Copyright Office has several advantages.
Your code becomes publicly available, making it easier for those who wish to license it to find it. By registering, you establish ownership, which is necessary if you need to claim copyright infringement. You’ll have a stronger case if you register it before an infringement happens or at least within three months of publication of your code.
Can You Train AI On Copyrighted Material?
One of the biggest controversies regarding AI and copyright is the data that these models are trained on. In most cases, they are trained using content gathered online, such as text or images. Using this data is argued by AI professionals to be fair use, a policy intended to promote freedom of expression through use of copyright-protected works.
At the moment, the use of copyrighted materials in machine learning has not yet been formally ruled on by the courts in the United States.
It is likely, however, that training AI models with copyrighted data would fall under fair use. On the other hand, it may be different for content generated by AI. This means that while you may be able to train your generative AI model with this data, you may not be able to use the content it generates in whichever way you want.
If You Need a Consulting Regarding How To Copyright Your Code, Sanchelima & Associates Can Help
Sanchelima & Associates, P.A. is one of the leading intellectual property law firms in South Florida. With over 40 years of experience, we have represented the IP interests of a wide array of businesses in the US and abroad, including Fortune 500 companies. Whether you need a consultation or prosecution of a patent, trademark, or copyright, we can protect your business’s interests.
Contact us to book your consultation!