Is legal the same as legitimate: AI reimplementation and the erosion of copyleft

>Our foreparents fought for the right to implement works-a-like to corporate software packages, even if the so-called owners did not like it

Our "foreparents" weren't competing with corporations with unlimited access to generative AI trained on their work. The times, they're-a-changin'.

You're rehashing the argument made in one of the articles which this piece criticizes and directly addresses, while ignoring the entirety of what was written before the conclusion that you quoted.

If anyone finds themselves agreeing with the comment I'm responding to, please, do yourself a favor and read the linked article.

I would do no justice to it by reiterating its points here.

> So: once it's not "hard" any more, does IP even make sense at all? Why grant monopoly rights to something that required little to no investment in the first place? Even with vestigial IP law - let's say, patents: it just becomes and input parameter that the AI needs to work around the patents like any other constraints.

I think it still does: IIRC, the current legal situation is AI-output does not qualify for IP protections (at least not without substantial later human modification). IP protections are solely reserved for human work.

And I'm fine with that: if a person put in the work, they should have protections so their stuff can't be ripped off for free by all the wealthy major corporations that find some use for it. Otherwise: who cares about the LLMs.

More likely: this is a transitional phase where our previously hard problems become easy, and we will soon set our sights on new and much harder problems. The pinnacle of creative achievement in the universe is probably not 2010s B2B SaaS.

It is entirely possible, however, that human beings will not be the primary drivers of progress on those problems.

Good. Intellectual property is now a twisted concept by the elite, whatever its benefits were previously. As soon as Disney made Mickey popular, it was all downhill.

If you think about creative outcomes as n dimensional 'volumes', AI expressions can cover more than humans in many domains. These are precisely artistic styles, music styles etc. and tbh not everyone can be a Mozart but may be a lot more with AI can be Mozart lite. This begs the question how much of creativity is appreciated as a shared experience

It might unravel intellectual property, just not in a fair way. When capitalism started, public land was enclosed to create private property. Despite this being in many cases a quite unfair process, we still respect this arrangement.

With AI, a similar process is happening - publicly available information becomes enclosed by the model owners. We will probably get a "vestigial" intellectual property in the form of model ownership, and everyone will pay a rent to use it. In fact, companies might start to gatekeep all the information to only their own LLM flavor, which you will be required to use to get to the information. For example, product documentation and datasheets will be only available by talking to their AI.

Nothing changes for drug patents regardless of whether an LLM was used in the discovery process.

I've always thought the opposite: IP law was created to make sure creativity stays hard, and hence controllable by the elites.

Patents came along when farmers started making city goods, threatening guilds secrets. Copyright came when the printing press made copying and translating the bible easy and accessible to all. (Trademark admittedly does not fit this view, but doesn't seem all that damaging either)

To Protect The Arts, and To Time Limit Trade Secrets were just the Protect The Children of old times, a way to confuse people who didn't look too hard at actual consequences.

This means that the future of IP depends on what lets the powers that be pull up the ladder behind them. Long term I'd expect e.g. copyright expansion and harder enforcement, just because cloning by AI gets easy enough to threaten the status quo.

"Hard" or "easy" has never been part of the premise.

A company spends a decade and billions of dollars to develop a groundbreaking drug and patents it.

I think of a cool new character called "Mr Poop" and publish a short story about him with an hour of work.

Both of us get the exact same protection under the law (yes yes I know copyright vs patent etc., but ultimately they are all about IP protection).

Don't worry. The courts have consistently sided with huge companies on copyright. In the US. In Europe. Doesn't matter.

Company incorporates GPL code in their product? Never once have courts decided to uphold copyright. HP did that many times. Microsoft got caught doing it. And yet the GPL was never applied to their products. Every time there was an excuse. An inconsistent excuse.

Schoolkid downloads a movie? 30,000 USD per infraction PLUS armed police officer goes in and enforces removal of any movies.

Or take the very subject here. AI training WAS NOT considered fair use when OpenAI violated copyright to train. Same with Anthropic, Google, Microsoft, ... They incorporated harry potter and the linux kernel in ChatGPT, in the model itself. Undeniable. Literally. So even if you accept that it's changed now, OpenAI should still be forced to redistribute the training set, code, and everything needed to run the model for everything they did up to 2020. Needless to say ... courts refused to apply that.

So just apply "the law", right. Courts' judgement of using AI to "remove GPL"? Approved. Using AI to "make the next Disney-style movie"? SEND IN THE ARMY! Whether one or the other violates the law according to rational people? Whatever excuse to avoid that discussion is good enough.

As described, this would not be the same thing. If the AI is looking at the source and effectively porting it, that is likely infringement. The idea instead should be "implement Minecraft from scratch" but with behavior, graphics, etc. identical. Note that you'll need to have an AI generate assets or something since you can't just reuse textures and models.

I’ve often thought that the key to fighting this is through this exact method. Turn the tool against them

This was not about legality.

> That question is this: does legal mean legitimate?

Just because something is legal does not mean it's moral thing to do.

The big question is: if copyrighted material was used in the training material, is the LLM's output copyright infringement when it resembles the training material? In your example, you are taking the copyrighted material and giving it to the LLM as input and instructing the LLM to process it. Regardless of where the legal cards fall, this is a much less ambiguous scenario.

You will probably run into design patents.

They might not care. Products win not by quality or features but by advertisement, hype and network effects.

The original implementation would still have the upper hand here. OTOH if I as a nobody create something cool, there's nothing stopping a huge corporation from "reimplementing" (=stealing) it and and using their huge advertising budget to completely overshadow me.

And that's how they like it.

You might wish that were true, but there are very strong arguments it's not. Training on copyleft licensed code is not a license violation. Any more than a person reading it is. In copyright terms, it's such an extreme transformative use that copyright no longer applies. It's fair use.

But agreed that we're waiting for a court case to confirm that. Although really, the main questions for any court cases are not going to be around the principle of fair use itself or whether training is transformative enough (it obviously is), but rather on the specifics:

1) Was any copyrighted material acquired legally (not applicable here), and

2) Is the LLM always providing a unique expression (e.g. not regurgitating books or libraries verbatim)

And in this particular case, they confirmed that the new implementation is 98.7% unique.

I agree there has to be a court case about it. I think the current argument, however, is that it is transformative, and therefore falls under fair use.

> LLM as the main weapon

LLM's - to date - seem to require massive capital expenditures to have the highest quality ones, which is a monumental shift in power towards mega corporations and away from the world of open source where you could do innovative work on your own computer running Linux or FreeBSD or some other open OS.

I don't think that's an exciting idea for the Free Software Foundation.

Perhaps with time we'll be able to run local ones that are 'good enough', but we're not there yet.

There's also an ethical/moral question that these things have been trained on millions of hours of people's volunteer work and the benefits of that are going to accrue to the mega corporations.

Edit: I guess the conclusion I come to is that LLM's are good for 'getting things done', but the context in which they are operating is one where the balance of power is heavily tilted towards capital, and open source is perhaps less interesting to participate in if the machines are just going to slurp it up and people don't have to respect the license or even acknowledge your work.

Copyleft is a mirror of copyright, not a way to fight copyright. It grants rights to the consumer where copyright grants rights to the creator. Importantly, it gives the end-user the right to modify the software running on their devices.

Unfortunately, there are cases where you simply can't just "re-implement" something. E.g., because doing so requires access to restricted tools, keys, or proprietary specifications.

> chuck away the GPL as the main tool to fight evil software corporations and embrace LLM as the main weapon.

LLMs are one of the primary manifestations of 'evil software corporations' currently.

> AI is eroding copyright, so there may no longer be a need for the GPL. GNU should stop and rethink its stance, chuck away the GPL as the main tool to fight evil software corporations and embrace LLM as the main weapon.

Is this LLM thing freely available or is it owned and controlled by these companies? Are we going to rent the tools to fight "evil software corporations"?

I agree with almost all of that, except the part about GNU changing their stance. I think GNU should stay true and consistent, if for no other reason than to not make many of their supporters who aren't on board with AI feel betrayed and have GNUs legacy soured. If the cause of LLMs conquering proprietary software needs an organization to champion it, let that be a new organization, not GNU.

> we'll see that it was an attempt to fight copyrights with copyrights

it's not that simple

yes, GPLs origins have the idea of "everyone should be able to use"

but it also is about attribution the original author

and making sure people can't just de-facto "size public goods"

the kind of AI usage is removing attribution and is often sizing public goods in a way far worse then most companies which just ignored the license did

so today there is more need then ever in the last few decades for GPL like licenses

Its purpose "if you run the software you should be able to inspect and modify that software, and to share those modifications with your peers" not explicitly resist copyright. Yes copyright is bad in that it often prevents one from doing that, but it is not the purpose of the GPL to dismantle copyright.

Reducing it to "well you can clone the proprietary software you're forced to use by LLM" is really missing the soul of the GPL.

That's naive. Copyright doesn't just apply to software. There already have been countless lawsuits about copying music long before the term "open source" was invented. No, changing the lyrics a bit doesn't circumvent copyright. Nor does translating a Stephen King novel to German and switching the names of the places and characters.

A court ordered the first Nosferatu movie to be destroyed because it had too many similarities to Dracula. Despite the fact that the movie makes rather large deviations from the original.

If Claude was indeed asked to reimplement the existing codebase, just in Rust and a bit optimized, that could well be a copyright violation. Just like rephrasing A Song ot Ice and Fire a bit, and switching to a different language, doesn't remove its copyright.

This is naive. Advertisement and network effects win. Individuals cannot compete with corporations on equal ground here.

> What AI are eroding is copyright.

At the moment it's people that are eroding copyright. E.g. in this case someone did something.

"AI" didn't have a brain, woke up and suddenly decided to do it.

Realistically nothing to do with AI. Having a gun doesn't mean you randomly shoot.

> AI is eroding copyright

Unless it is IP of the same big corpos that consumed all content available. Good luck with eroding them.

So not only are we moving goalposts here, but we've decided the GNU team should join the other team? I don't understand how GNU would see mass model LLM training as anything but the most flagrant violations of their ethos. LLM labs, in their view, would be among the most evil software corporations to have ever existed.

While I personally agree with you, Richard Stallman (the creator of the GPL) does not. He has always advocated in favor of strong copyright protection, because the foundation of the GPL is the monopoly power granted by copyright. The problem that the GPL is intended to solve is proprietary software.

Generative models (AI) are not really eroding copyright. They are calling its bluff. The very notion of intellectual property depends on a property line: some arbitrary boundary where the property begins and ends. Generative models blur that line, making it impractical to distinguish which property belongs to whom.

Ironically, these models are made by giant monopolistic corporations whose wealth is quite literally a market valuation (stock price) of their copyrights! If generative models ever become good enough to reimplement CUDA, what value will NVIDIA have left?

The reality is that generative models are nowhere near good enough to actually call the bluff. Copyright is still the winning hand, and that is likely to continue, particularly while IP holders are the primary authors of law.

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This whole situation is missing the forest for the trees. Intellectual Property is bullshit. A system predicated on monopoly power can only result in consolidated wealth driving the consolidation of power; which is precisely what has happened. The words "starving artist" ring every bit as familiar today as any time in history. Copyright has utterly failed the very goals it was explicitly written with.

It isn't the GPL that needs changing. So long as a system of copyright rules the land, copyleft is the best way to participate. What we really need is a cohesive political movement against monopoly power; one that isn't conveniently ignorant of copyright as its most significant source.

It's transformative, so no.

Legally, using the tests to help create the reimplementation is fine.

However, it seems possible you can't redistribute the same tests under the MIT license. So the reimplementation MIT distribution could need to be source code only, not source code plus tests. Or, the tests can be distributed in parallel but still under LGPL, not MIT. It doesn't really matter since compiled software won't be including the tests anyways.

Google v. Oracle ruled that use of APIs are fair game and could be argued that test cases are strictly a use of APIs and not implementation.

> Blanchard is, of course, familiar with the source code, he's been its maintainer for years.

I would argue it's irrelevant if they looked or didn't look at the code. As well as weather he was or wasn't familiar with it.

What matters is, that they feed to original code into a tool which they setup to make a copy of it. How that tool works doesn't really matter. Neither does it make a difference if you obfuscate that it's an copy.

If I blindfold myself when making copies of books with a book scanner + printer I'm still engaging in copyright infringement.

If AI is a tool, that should hold.

If it isn't "just" a tool, then it did engage in copyright infringement (as it created the new output side by side with the original) in the same way an employee might do so on command of their boss. Which still makes the boss/company liable for copyright infringement and in general just because you weren't the one who created an infringing product doesn't mean you aren't more or less as liable of distributing it, as if you had done so.

I just don't see how it's relevant whether he did look or didn't. In my opinion, it's not just legally valid to make a re-implementation of something if you've seen the code as long as it doesn't copy expressive elements. I think it's also ethically fine as well to use source code as a reference for re-implementing something as long as it doesn't turn into an exact translation.

Oracle had it's day in court with Google over the Java APIs. Reimplementing APIs can be done without copyright infringement, but Oracle must have tried to find real infringement during discovery.

In this case, we could theoretically prove that the new chardet is a clean reimplementation. Blanchard can provide all of the prompts necessary to re-implement again, and for the cost of the tokens anyone can reproduce the results.

>This feels sort of like saying "I just blindly threw paint at that canvas on the wall and it came out in the shape of Mickey Mouse, and so it can't be copyright infringement because it was created without the use of my knowledge of Micky Mouse"

IANAL, but that analogy wouldn't work because Mickey Mouse is a trademark, so it doesn't matter how it is created.

Can anyone find the actual quote where Blanchard said this?

My understanding was that his claim was that Claude was not looking at the existing source code while writing it.

Isn't this a red herring? An API definition is fair use under Google v. Oracle, but the test suite is definitely copyrightable code!

If you only stick to the API and ignore the implementation, it is not Mickey Mouse any more but a rodent. If it was just a clone it wouldn't be 50x as fast. Nevertheless, APIs apparently can be copyrightable. I generally disagree with this; it's how PC compatibles took off, giving consumers better options.

> This feels sort of like saying "I just blindly threw paint at that canvas on the wall and

> He fed only the API and the test suite to Claude and asked it

Difference being Claude looked; so not blind. The equivalent is more like I blindly took a photo of it and then used that to...

Technically did look.

What if we said that generative AI output is simply not copyrightable. Anything an AI spits out would automatically be public domain, except in cases where the output directly infringes the rights of an existing work.

This would make it so relicensing with AI rewrites is essentially impossible unless your goal is to transition the work to be truly public domain.

I think this also helps somewhat with the ethical quandary of these models being trained on public data while contributing nothing of value back to the public, and disincentivize the production of slop for profit.

It goes in one direction only.

Companies can take open-source software and make a proprietary reimplementation. You can't take a proprietary software and make an open source GPL version.

I am absolutely certain that if you tried you would be sued to oblivion. But big company screwing up open source is not even news anymore. In fact I (still) believe that the fact that even though LLMs were trained on tons of GPL and AGPL or even unlicensed software it's considered ok to use LLM code in proprietary projects is example of just that.

I've been thinking this for over two years, that's why I stopped contributing to open source at that time - my work was only gonna be exploited to make rich people richer regardless of the license.

Crazy that only now we're seeing a bunch of articles coming to the same conclusion now.

I think copyright should still apply, but if it doesn't, we need new laws - ones which protect all human work, creative or not. Laws should serve and protect people, not algorithms and not corporations "owning" those algorithms.

I put owning in quotes because ownership should go to the people who did the work.

Buying/selling ownership of both companies and people's work should be illegal just like buying/selling whole humans is. Even if it took thousands of years to get here.

Money should not buy certain things because this is the root cause of inequality. Rich people are not getting richer at a faster rate by being more productive than everyone else but by "owning" other people's work and using it as leverage to extract even more from others.

Maybe LLM and mass unemployment of white collar workers will be the wakeup call needed for a reform. Or revolution.

Last time this happened was during the second industrial revolution and that's how communism got popular. We should do better this time because this is the last revolution which might be possible.

Not Invented Here's long, slow mutagenic march toward full antibiotic resistance continues apace.

There is a fundamental corpo-cognitive dissonance, to boot. If "AI" is cheap enough and good enough to implement security-relevant software from `git init` repeatedly, why isn't it also cheap enough and good enough to assess and approve the security of third-party software at pace with internal adoption? Is there some basis to believe LLMs' leverage on production differs from its leverage on analysis of existing code?

>then his own familiarity with the previous LGPL implementation makes the new one almost certainly a derivative of the original.

The "clean room rewrite" is just an extreme way to have a bulletproof shield against litigation. Not doing it that way doesn't automatically make all new code he writes derivative solely because he saw how the code worked previously.

You've just described why every SaaS stock has taken a beating in the last 6 months.

> ultimate form of piracy

Nothing was stolen, not even copied, lamest piracy I've heard of.

There’s an other option. The cost of copying existing software trends to 0, but the cost of writing new software stays far enough above 0 that it is still relatively expensive.

There was a recent ruling that LLM output is inherently public domain (presumably unless it infringes some existing copyright). In which case it's not possible to use them to "reimplement everything we can as copyleft".

There will always be cost though. Even if perfect code is getting one-shotted out, that is constantly maintained and adapted to changing conditions and technology, it simply can't stay at 0 forever because one day the power is surely going to go out!

More and more I am drawn to these kinds of ideas lately, perhaps as a kind of ethical sidestep, but still:

- https://wiki.xxiivv.com/site/permacomputing.html

- https://permacomputing.net/

It's not going to solve any general issue here, but the one thing these freaks need that can't be generated by their models is energy, tons of it. So, the one thing I can do as an individual and in my (digital) community is work to be, in a word, self-sustainable. And depending on my company I guess, if I was a CEO I would hope I was wise enough to be thinking on the same lines.

Everyone is making beautiful mountains from paper and wire. I will just be happy to make a small dollhouse of stone, I think it will be worth it. How can we see not just at least some small-level of hubris otherwise?

The value of software has never been tied to the cost of writing it, even if you don't distribute it your still breaking the law.

> porting old GPL programs, typically written in C, to Rust and relicensing them as MIT

Everything for memory safety.

Total digression but yeah, that layout is stupid and the way those words are dropped in using Romaji makes no sense. That's not how Japanese people lay out pages on the web. In fact I don't think I've ever seen a Japanese web page laid out like a book like this, and in general I'd expect the English proper nouns and words that don't have obvious translations to get transliterated into Katakana. Smells like automatic conversion added by someone not really familiar with common practices for presenting Japanese on the web.

Having this discussion involves blasting others for not considering it. Consider the rest of the paragraph you quoted:

> But law only says what conduct it will not prevent—it does not certify that conduct as right. Aggressive tax minimization that never crosses into illegality may still be widely regarded as antisocial. A pharmaceutical company that legally acquires a patent on a long-generic drug and raises the price a hundredfold has not done something legal and therefore fine. Legality is a necessary condition; it is not a sufficient one.

> Was it due to ideology or lower cost or more features?

It was due to access.

When learning is sufficiently atomized and recombined, creations cease to be "derived from" in a legal sense.

A lego sculpture is copyrighted. Lego blocks are not. The threshold between blocks and sculpture is not well-defined, but if an AI isn't prompted specifically to attempt to mimic an existing work, its output will be safely on the non-copyrighted side of things.

A derivative work is separately copyrightable, but redistribution needs permission from the original author too. Since that usually won't be granted or would be uneconomical, the derivative work can't usually be redistributed.

AI-produced material is inherently not copyrightable, but not because it's a derivative work.

Courts have already ruled that AI-generated work belongs to the public domain. So, even the MIT license does not apply.

But the LLM contributions would likely be ruled public domain, so AGPL may not be enforceable on these.

The point of GPL is to restrict distribution. If there’s already an MIT version, it’s useless.

> this is the point of the "clean room" dance

which is the actual relevant part: they didn't do that dance AFIK

AI is a tool, they set it up to make a non-verbatim copy of a program.

Then they feed it the original software (AFIK).

Which makes it a side by side copy, as in the original source was used as reference to create the new program. Which tend to be seen as derived work even if very different.

IMHO They would have to:

1. create a specification of the software _without looking at the source code_, i.e. by behavior observation (and an interface description). I.e. you give the AI access to running the program, but not to looking into the insides of it. I really don't think they did it as even with AI it's a huge pain as you normally can't just brute force all combinations of inputs and instead need to have a scientific model=>test=>refine loop (which AI can do, but can take long and get stuck, so you want it human assisted, and the human can't have inside knowledge about the program).

2. then generate a new program from specification, And only from it. No git history, no original source code access, no program access, no shared AI state or anything like that.

Also for the extra mile of legal risk avoidance do both human assisted and use unrelated 3rd parties without inside knowledge for both steps.

While this does majorly cut cost of a clean room approach, it still isn't cost free. And still is a legal mine field if done by a single person, especially if they have enough familiarity to potentially remember specific peaces of code verbatim.

Why would I make my own? The new library is released under MIT license and faster than the old one.

I mean, Blanchard was the longtime maintainer of chardet already, and had wanted to relicense it for years. So I think that complicates your picture of "squatting an existing successful project".

Honestly it's a weird test case for this sort of thing. I don't think you'd see an equivalent in most open source projects.

I agree. But you can't copyright goodwill and reputation. Trademark does provide some protection there, right?

Or, hopefully, even less of a role.

Arguably, the GPL has always been the wrong choice if you want to authoritatively control redistribution.

We should just use LLMs to free more software and HW. Make it work against the system.

> They completely miss the fact that a lot of his blog post is not actually just about legal but also about ethical matters.

Honestly I was confused about the summarization of my blog post into just a legal matter as well. I hope my blog post will be able to flash at least a short time in the HN front page so that the actual arguments it contain will get a bit more exposure.

I'm failing to see what in the quoted text you took to be about AI rewrites specifically? It just reads as a slightly catty aside about the social reaction of rewrites in general (by implying the one example is generalizable.)

IMO the core idea of copyright isn't nonsense, but I do think the current implementation (70+ years after death) is egregiously overpowered. I've always thought the current laws were too deeply entrenched to ever change, but I'm tentatively optimistic AI will shock the system hard enough to trigger actual reform.

I think AI is very much eroding the legitimacy of copyright - at least to software, which is long been questioned since it's more like math than creative expression.

I think the industry will realize that it made a huge mistake by leaning on copyright for protection rather than on patents.

Probably a wiser approach is to consider different times require different measures (in general!).

I did not study in detail if copyright "has always been nonsense", but I do agree that nowadays some of the copyright regulations are nonsense (for example the very long duration of life + 70 years)

Actually I think the last 20 years of the Internet demonstrates that copyright is more important than ever, because unless it's enforced, people with more capital than the copyright owner will simply steal creative works and profit from them.

The idea that "information wants to be free" was always a lie, meant to transfer value from creators to platform owners. The result of that has been disastrous, and it's long past time to push the pendulum in the other direction.

Google already spent billions of dollars and decades of lawyer hours proving it out as fair use. The legal challenges we see now are the dying convulsions of an already broken system of publishers and IP hoarders using every resource at their disposal to manipulate authors and creators and the public into thinking that there's any legitimacy or value underlying modern copyright law.

AI will destroy the current paradigm, completely and utterly, and there's nothing they can do to stop it. It's unclear if they can even slow it, and that's a good thing.

We will be forced to legislate a modern, digital oriented copyright system that's fair and compatible with AI. If producing any software becomes a matter of asking a machine to produce it - if things like AI native operating systems come about, where apps and media are generated on demand, with protocols as backbone, and each device is just generating its own scaffolding around the protocols - then nearly none of modern licensing, copyright, software patents, or IP conventions make any sense whatsoever.

You can't have horse and buggy traffic conventions for airplanes. We're moving in to a whole new paradigm, and maybe we can get legislation that actually benefits society and individuals, instead of propping up massive corporations and making lawyers rich.