Re: Ballot option: Allow AI-Assisted Contributions

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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