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.
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.