LLMs themselves being products of copyright isnt the legal question at issue, it’s the downstream use of that product.
If I use a copyright-infringing work as a part of a new creative work, does that new work infringe copyright by default? Or does the new work need to be judged itself as to the question of infringing a copyrighted work?
And if it is judged as infringing, who is responsible for the damage done? Can I pass the damages back to the original infringing work? Or should I be held responsible for not performing due diligence?
If I use a copyright-infringing work as a part of a new creative work, does that new work infringe copyright by default?
No, see reaction content, parody content, etc. They all undoubtedly use copyrighted work and they don’t automatically infringe on copyright by default.
And if it is judged as infringing, who is responsible for the damage done? Can I pass the damages back to the original infringing work? Or should I be held responsible for not performing due diligence?
The infringing party is the human that used the tool which generated the infringing work. Everything after that is exactly the same applicaton of copyright law just as if you were selling pictures of Mickey Mouse that you drew yourself. Disney can sue you, they can’t sue the pencil manufacturer.
It is though. If you commit copyrighted code that was output by an LLM, you do have to follow the license of that code. If you don’t, that’s copyright infringement.
Even if the code isn’t copyrighted code, then it’s public domain code that can’t be copyrighted:
Copyright is created and enforced by copyright law.
Licenses are created and enforced by contract law.
You can violate a contract without violating a copyright and you can violate a copyright without agreeing to a license. You can also license works that are not able to be protected by a copyright because they are two separate categories of law.
Sure, you can license them, but that license is unenforceable, because you don’t own the copyrights, so you can’t sue anyone for copyright infringement. And you’d have to be a fool to agree to a license for public domain material. You can do whatever you want with it, no license necessary.
The Linux Kernel is under a copyleft license - it isnt being copyrighted.
But the policy being discussed isn’t allowing the use of copyrighted code - they’re simply requiring any code submitted by AI be tagged as such so that the human using the agent is ultimately responsible for any infringing code, instead of allowing that code go undisclosed (and even ‘certified’ by the dev submitting it even if they didnt write or review it themselves)
Submissions are still subject to copyright law - the law just doesnt function the way you or OP are suggesting.
Copyleft doesn’t mean it’s not copyrighted. Copyleft is not a legal term. “Copyleft” licenses are enforced through copyright ownership.
Did you read the quotes from the copyright office I linked to? I am going to go ahead and trust the copyright office over you on issues of copyrightability.
Unless the code the AI generated is a copy of copyrighted code, of course. Then it would be copyright infringement.
I can cause the AI to spit out code that I own the copyright to, because it was trained on my code too. If someone used that code without including attribution to me (the requirement of the license I release my code under), that would be copyright infringement. Do you understand what I mean?
That would be true even if they didn’t use AI to reproduce it.
The problem being addressed by the Linux foundation isn’t the use of copyrighted work in developer contribution, it’s the assumption that the code was authored by them at all just because it’s submitted in their name and tagged as verified.
Yes, that makes sense. People have always been able to intentionally commit copyright infringement. However, it has historically been fairly difficult to unintentionally commit copyright infringement. That’s no longer the case. AI makes it very easy to unintentionally commit copyright infringement. That’s a good reason to ban it outright.
The risk of that is relatively low for kernel contributions, though. Most of the work being done is porting existing protocols/firmware into the latest Linux kernel, not creating novel features.
The larger risk is instability caused by bad, hallucinated code because it was submitted under the assumption of human authorship. In both cases, further review by the Linux team can be done if they understand where that code is coming from.
Banning AI does nothing, because theres no way of knowing who uses it without proper disclosure, which wouldnt happen if it were banned. To use an example from the article, it would be like banning code written with the use of a specific brand of keyboard.
Better to have it properly disclosed than to make it illicit
That’s not really how copyright law works.
Would you also say that to this lawyer reviewing Co-Pilot in 2026? https://github.com/mastodon/mastodon/issues/38072#issuecomment-4105681567
Disclaimer: this isn’t legal advice.
LLMs themselves being products of copyright isnt the legal question at issue, it’s the downstream use of that product.
If I use a copyright-infringing work as a part of a new creative work, does that new work infringe copyright by default? Or does the new work need to be judged itself as to the question of infringing a copyrighted work?
And if it is judged as infringing, who is responsible for the damage done? Can I pass the damages back to the original infringing work? Or should I be held responsible for not performing due diligence?
No, see reaction content, parody content, etc. They all undoubtedly use copyrighted work and they don’t automatically infringe on copyright by default.
The infringing party is the human that used the tool which generated the infringing work. Everything after that is exactly the same applicaton of copyright law just as if you were selling pictures of Mickey Mouse that you drew yourself. Disney can sue you, they can’t sue the pencil manufacturer.
Yup
People want to pretend as if everything that flows downstream from the creation of LLMs is illegal, but that’s just not the reality.
It is though. If you commit copyrighted code that was output by an LLM, you do have to follow the license of that code. If you don’t, that’s copyright infringement.
Even if the code isn’t copyrighted code, then it’s public domain code that can’t be copyrighted:
https://sciactive.com/human-contribution-policy/#More-Information
You’re confusing two separate legal issues.
Copyright is created and enforced by copyright law.
Licenses are created and enforced by contract law.
You can violate a contract without violating a copyright and you can violate a copyright without agreeing to a license. You can also license works that are not able to be protected by a copyright because they are two separate categories of law.
Sure, you can license them, but that license is unenforceable, because you don’t own the copyrights, so you can’t sue anyone for copyright infringement. And you’d have to be a fool to agree to a license for public domain material. You can do whatever you want with it, no license necessary.
The Linux Kernel is under a copyleft license - it isnt being copyrighted.
But the policy being discussed isn’t allowing the use of copyrighted code - they’re simply requiring any code submitted by AI be tagged as such so that the human using the agent is ultimately responsible for any infringing code, instead of allowing that code go undisclosed (and even ‘certified’ by the dev submitting it even if they didnt write or review it themselves)
Submissions are still subject to copyright law - the law just doesnt function the way you or OP are suggesting.
Copyleft doesn’t mean it’s not copyrighted. Copyleft is not a legal term. “Copyleft” licenses are enforced through copyright ownership.
Did you read the quotes from the copyright office I linked to? I am going to go ahead and trust the copyright office over you on issues of copyrightability.
Even if this were true, it would only mean that the GNU license is unenforceable, not that the Linux kernel itself is infringing copyright
Unless the code the AI generated is a copy of copyrighted code, of course. Then it would be copyright infringement.
I can cause the AI to spit out code that I own the copyright to, because it was trained on my code too. If someone used that code without including attribution to me (the requirement of the license I release my code under), that would be copyright infringement. Do you understand what I mean?
That would be true even if they didn’t use AI to reproduce it.
The problem being addressed by the Linux foundation isn’t the use of copyrighted work in developer contribution, it’s the assumption that the code was authored by them at all just because it’s submitted in their name and tagged as verified.
Does that make sense?
Yes, that makes sense. People have always been able to intentionally commit copyright infringement. However, it has historically been fairly difficult to unintentionally commit copyright infringement. That’s no longer the case. AI makes it very easy to unintentionally commit copyright infringement. That’s a good reason to ban it outright.
The risk of that is relatively low for kernel contributions, though. Most of the work being done is porting existing protocols/firmware into the latest Linux kernel, not creating novel features.
The larger risk is instability caused by bad, hallucinated code because it was submitted under the assumption of human authorship. In both cases, further review by the Linux team can be done if they understand where that code is coming from.
Banning AI does nothing, because theres no way of knowing who uses it without proper disclosure, which wouldnt happen if it were banned. To use an example from the article, it would be like banning code written with the use of a specific brand of keyboard.
Better to have it properly disclosed than to make it illicit