Hi, On 8/5/26 5:59 PM, Gerardo Ballabio wrote:
As I understand it, the problem with copyright isn't that AI providers might claim copyright. It's that *someone else* might claim copyright because the AI scraped and regurgitated their code. That's still an open legal question AFAIK.
That, and whether the person prompting AI can claim copyright on the generated code.
If we accept the premise that the code that went into the training data has been so thoroughly processed that no traces of the original copyrights remain and the generated code is therefore not subject to the intersection of the original licenses, that still leaves the context going into the inference phase.
That context is a mix of - system prompt (provided by the service) - project context (when modifying existing code) - user prompt Now, there are multiple possible interpretations:1. the output is not a derivative work of the context. The prompter therefore is not the author, and asserting that they own the copyright is therefore fraudulent.
2. the output is a derivative work of the context. We therefore need a licence from the service provider to be able to freely choose a licence for the generated output (I suppose we have that, but we need to make sure), and the generated code is largely attributable to the authors of the existing code, not the person implementing the latest change.
I don't see any interpretation where a thorough review is sufficient to establish authorship, regardless of whether the generated code is copyrightable or not.
For the US, the closest to case law we have is probably the Monkey Selfie Copyright Dispute.
I see very little danger that copyright holders of training data will be able to sue for infringement, because that would put the legal status of inference services into question, and these can (still) afford expensive lawyers.
I think it is more likely that we will see another FUD campaign like in the early 2000s, with large commercial software vendors asserting that the legal status of free software is unclear because of potential AI involvement.
Oracle have a strong policy disallowing any AI use in OpenJDK. We can only speculate if they are doing this for legal or technical reasons, but neither suggests that it is a good idea to use AI for contributions to existing OSS projects.
I'm a bit more relaxed[2] about isolated green field development by single authors, especially for things that aren't core system components and can be exchanged if necessary. The more problematic uses are the proper community projects with hundreds of authors, where one cannot assume that all copyright holders agree.
Simon [1] https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dispute[2] except for the influence of AI on sanitation, medicine, education, wine, public order, irrigation, roads, the fresh water system and public health
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