Fair Use is an affirmative defense (i.e. you must be sued and go to court to use it; once you're there, the judge/jury will determine if it applies). But taking in code with any sort of restrictive license (even if it's just attribution) and creating a model using it is definitely creating a derivative work. You should remember, this is why nobody at Ximian was able to look at the (openly viewable, but restrictively licensed) .NET code.
Looking at the four factors for fair use looks like Copilot will have these issues:
- The model developed will be for a proprietary, commercial product
- Even if it's a small part of the model, the all training data for that model are fully incorporated into the model
- There is a substantial likelihood of money loss ("I can just use Copilot to recreate what a top tier programmer could generate; why should I pay them?")
I have no doubt that Microsoft has enough lawyers to keep any litigation tied up for years, if not decades. But your contention that this is "okay because it's fair use" based on a position paper by an organization supported by your employer... I find that reasoning dubious at best.
Looking at the four factors for fair use looks like Copilot will have these issues: - The model developed will be for a proprietary, commercial product - Even if it's a small part of the model, the all training data for that model are fully incorporated into the model - There is a substantial likelihood of money loss ("I can just use Copilot to recreate what a top tier programmer could generate; why should I pay them?")
I have no doubt that Microsoft has enough lawyers to keep any litigation tied up for years, if not decades. But your contention that this is "okay because it's fair use" based on a position paper by an organization supported by your employer... I find that reasoning dubious at best.