I think the factor most at risk in a fair use test with Copilot is whether it ever suggests verbatim, code that could be considered the "heart" of the original work. The John Carmack example that's popped up here at least gets closer to this question, it was a relatively small amount but it was doing something very clever and important.
One can imagine a project that has thousands of lines of code to create a GUI, handle error conditions, etc. that's built around a relatively small function; if Copilot spat out that function in my code, it might not be fair use because it's the "heart" of the original work. Additionally, its inclusion in another project could affect the potential market for the original, another fair use test.
But Copilot suggesting a "heart" is unlikely, something that would have to be ruled on in a case-by-case basis and not a reason to shut it down entirely. Companies that are risk-averse could forbid developers from using Copilot.
This is an excellent comment because it captures some important nuance missing from other analysis on HN.
I agree with you that the relative importance of the copied code to the end product would be (or should be) the crux of the issue for the courts in determining infringement.
This overall interpretation most closely adheres to the spirit and intent of Fair Use as I understand it.
I think the factor most at risk in a fair use test with Copilot is whether it ever suggests verbatim, code that could be considered the "heart" of the original work. The John Carmack example that's popped up here at least gets closer to this question, it was a relatively small amount but it was doing something very clever and important.
One can imagine a project that has thousands of lines of code to create a GUI, handle error conditions, etc. that's built around a relatively small function; if Copilot spat out that function in my code, it might not be fair use because it's the "heart" of the original work. Additionally, its inclusion in another project could affect the potential market for the original, another fair use test.
But Copilot suggesting a "heart" is unlikely, something that would have to be ruled on in a case-by-case basis and not a reason to shut it down entirely. Companies that are risk-averse could forbid developers from using Copilot.