The difference here is that it's hard to sue a company for sporadic, difficult to track down usages of SO content written by their own engineers.
One can now trivially coerce copilot to regurgitate copyrighted content without attribution. Copilot's basic premise violates the CC-BY-SA terms, and this will continue until no party can demonstrate a viable method of extracting copyrighted code.
There is now a single party backed by a company with a 2 Trillion dollar market cap that can be sued for flagrant copyright violations.
I would think it's more complicated when the tool is the thing spitting out the verbatim copies of code. Both the tool and the developer are independently distributing copyrighted code that neither of them have the rights to distribute.
why? one could easily claim that if the tool is reproducing the contents of copyrighted works they are a "distributor". Subjecting the makers of the tool/distributor too much higher copyright infringement claims.
Let's differentiate legal risk by the party it affects:
* Companies with engineers using Copilot. Risk here is negligible, like that of copying Stack Overflow answers, or any code that isn't under a truly permissive license like CC0 [1]. Prohibiting use of Copilot in a company based on this risk has no merit.
* GitHub and Microsoft. Risk for them is higher yet worthwhile. Copilot is more like Stack Overflow than Napster. Affected copyright holders added their works to GitHub and agreed to their terms, so GitHub has a legal basis to show that content in Copilot. In terms of facilitating copyright infringement, far more violations occur by engineers manually searching and copying code on GitHub; lawsuits against GitHub due to that would be dismissed. Determining provenance is slightly harder in Copilot than in search, but GitHub could minimize risk to itself by noting in Copilot terms that users must review Copilot's suggestions for underlying license concerns. Engineers rarely will -- they routinely violate licenses of Stack Overflow and code copied from elsewhere -- but that shifts responsibility from GitHub, and legal risk to companies using Copilot remains negligible.
One can now trivially coerce copilot to regurgitate copyrighted content without attribution. Copilot's basic premise violates the CC-BY-SA terms, and this will continue until no party can demonstrate a viable method of extracting copyrighted code.
There is now a single party backed by a company with a 2 Trillion dollar market cap that can be sued for flagrant copyright violations.