There's no clause you can add to A/GPL that will help with this. You can't forbid use cases because that would clash with the license, and Github already blatantly ignores the attribution clauses, so there's nothing you can do there either.
GitHub’s EULA gives GitHub permission to train Copilot on public code you host on GitHub regardless of the license you have chosen for that code.
Even without this, in terms of copyright, since Copilot doesn’t do what your public code does, and it only uses your code to train, it is a transformative use, and would be fair use. It’s possible that a court case will find otherwise, but I think that’s unlikely. The only case I think it will become disallowed, is if Congress passes a law about it.
If Congress does pass such a law, GitHub’s market power in this domain only goes up, since the EULA gives it the covenants.
Spitting out lines or paragraphs from a repo is most likely fair use.
Unless you can reproduce a substantial portion of a repo, I think it’s going to be an uphill battle to argue it isn’t fair use. Though I suspect Copilot’s suppression feature will make doing so impossible.
Assuming the reports of it producing the fast inverse square root function, comments included, from the Quake 3 engine were true; spitting out the whole function, comments included, doesn't look OK to me.
Either way, the whole copilot thing smells of 'the issue of copyright infringement is more copyright infringement' to me.
But not every author will have agreed to the EULA, if the project includes code by people not in GitHub. E.g. if there is a GitHub mirror of a project that is not hosted by the author, if a project received a patch via email instead of a PR, etc.
That is a very good point, and perhaps could be used as a starting point for a license clause to restrict hosting in places whose EULA doesn't respect the true intent of the license.
I think it is ethical and reasonable to include clauses in the A/GPL restricting where you can host the source code if the hosting service has opensource hostile terms in their ToS. US case law already allows this by treating such license as a "new" license different to the GPL.
(And I don't see why we cannot add a clause saying that the source code is only meant for human developers and use of the source code in any machine learning system or to train any AI systems is prohibited without explicit case-by-case permission).
Has FSF actually said this? I don't see how it makes it a non-free license - the original intent behind the xGPL is to ensure that a user of the software also has the access to the source code, along with the knowledge of who created it (attribution). This is to protect our right to repair. So if any part of your source code is used by someone else, even by an AI system, to generate a software, it should also inherit the same viral property of the license - be licensed under GPL with attribution. If it does not, it is similar to a non-free software using your GPL code in the project, which is already prohibited by the license.
