A legal view on AI tools that write software code

Artificial Intelligence (AI) products are creating incredible solutions to our modern-day problems. However, before we can herald in a new era of AI-assisted working practices, we need to consider legal questions around AI-generated work. Hannah McCarthy takes a legal look at using Generative AI to create and improve programme code in this excerpt from one of our recent blog articles:?

ChatGPT is not the first AI tool to offer a coding solution. GitHub Copilot can provide developers with improved code suggestions or add new code blocks. However, it has also had its fair share of controversy, which stems from GitHub’s use of code hosted on GitHub repositories to train and develop Copilot’s coding skills.??

Last November, a class action was filed in San Francisco against GitHub, Microsoft and OpenAI on behalf of GitHub users. The complaint argues that the defendants have violated the legal rights of a vast number of creators who posted code under open source licences on GitHub. As the litigation progresses, many questions need to be answered: was code copied from GitHub to be used as training data? Was the code hosted in GitHub used for purposes permitted under the doctrine of fair use? Have the open source software (OSS) licences been breached by use as training data? And the list goes on…??

Another key issue is the extent to which original licence terms governing the training materials can be respected when using AI coding tools. Some OSS is subject to a “copyleft” licence provision, meaning that any derivative work incorporating that OSS must become subject to the same licence terms. Alternatively, other licences require attribution or acknowledgement of the origin.??

If Copilot or ChatGPT provide a solution that is complex or lengthy, there’s a risk that copyrightable training material is being reproduced. Reported examples of Copilot code have shown obvious regurgitation, sometimes even including comments from the original materials. In such cases, the original licence terms need to be respected. However, Copilot will not notify you of the source used or the related licence requirements. Effectively, you’re flying blind in contravention of licence compliance.?

Such issues need resolutions before AI-based tools like Copilot and ChatGPT can be used in a risk-free manner. Read more legal considerations in the full blog article.?