This doesn’t fit the definition of fair use, if that’s what you are implying. Fair use is a balance between four factors, transformative nature is just one factor.
To satisfy section 107 of the U.S. Copyright Act, you need to look at four factors. The first consideration is the purpose and nature of the work, which is where a determination is made as to whether a work is sufficiently transformative to be considered fair use of copyrighted material. There are other factors at play on this test, however. A court would look at what sort of commercial interest and benefit is being made from the use of the material, and even then they may decide that a non-profit motive is not sufficient to satisfy this test.
The second factor a court will look at is the nature of the copyrighted work. In the case of open source material, it is already published but most licenses quite rightly ask for attribution. A court may decide that not satisfying the attribution of the work may cause it fail this criteria, and prevent it from being fairly used. However on this point, I feel CoPilot may be on more steady ground as the work is already published.
Fair Use doctrine also factors in the amount and substantiality of the work being reproduced. It is the substantiality issue that will likely trip up copilot, as the code snippets in use may be complex enough in nature that it is considered a substantial part of the code. A court may well consider an algorithm that took time to create and test, although only a small part of the codebase, is sufficiently complex in that it took substantial effort to create and thus look dimly on its use in a larger derived work.
The fourth factor in play here is the one being argued by the litigant, and I feel will be extremely hard for GitHub to justify; that factor is the effect use of the code has on the potential market or value of the code. Open Source projects rely on volunteers and contributions. Substantial effort is made to actively maintain projects. It is not within the spirit of most projects to have people use unattributed code snippets, because it reduces the value of contributions and improvements to the code project. Improvements and contributions are reduced, and it is also hard to distribute improvements and fixes to any project that uses the code. In this regard, CoPilot seems to be completely violating Fair Use doctrine.
So as you can see, Fair Use is way, way more complex than most people realise. Many people think that a sufficiently transformative use of copyrighted material is sufficiently for satisfying a Fair Use defence, but in reality it is not.
To satisfy section 107 of the U.S. Copyright Act, you need to look at four factors. The first consideration is the purpose and nature of the work, which is where a determination is made as to whether a work is sufficiently transformative to be considered fair use of copyrighted material. There are other factors at play on this test, however. A court would look at what sort of commercial interest and benefit is being made from the use of the material, and even then they may decide that a non-profit motive is not sufficient to satisfy this test.
The second factor a court will look at is the nature of the copyrighted work. In the case of open source material, it is already published but most licenses quite rightly ask for attribution. A court may decide that not satisfying the attribution of the work may cause it fail this criteria, and prevent it from being fairly used. However on this point, I feel CoPilot may be on more steady ground as the work is already published.
Fair Use doctrine also factors in the amount and substantiality of the work being reproduced. It is the substantiality issue that will likely trip up copilot, as the code snippets in use may be complex enough in nature that it is considered a substantial part of the code. A court may well consider an algorithm that took time to create and test, although only a small part of the codebase, is sufficiently complex in that it took substantial effort to create and thus look dimly on its use in a larger derived work.
The fourth factor in play here is the one being argued by the litigant, and I feel will be extremely hard for GitHub to justify; that factor is the effect use of the code has on the potential market or value of the code. Open Source projects rely on volunteers and contributions. Substantial effort is made to actively maintain projects. It is not within the spirit of most projects to have people use unattributed code snippets, because it reduces the value of contributions and improvements to the code project. Improvements and contributions are reduced, and it is also hard to distribute improvements and fixes to any project that uses the code. In this regard, CoPilot seems to be completely violating Fair Use doctrine.
So as you can see, Fair Use is way, way more complex than most people realise. Many people think that a sufficiently transformative use of copyrighted material is sufficiently for satisfying a Fair Use defence, but in reality it is not.