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**Angelica Hill:** Oh, God... Luis, I would love to hear a little bit more about you and your thoughts on code ownership. |
**Luis Villa:** Well, it's been a long time since I wrote anything approaching useful code... But I have been involved -- I had an interviewer ask me while I was interviewing for my first law school job out of law school, law firm job out of law school, and they said, "Well, you seem to really like tech. Why did you le... |
I had attended a conference of legal academics where Creative Commons was announced; that was 2001. So there were some legal academics who got it. And in fact, I pretty only applied to law schools that had at least one faculty member who had written something that indicated that they got it in the slightest amount. So ... |
\[06:19\] I think that's been that sense of, "Hey, I'm doing this to help open people get better lawyering" has served me well as a sort of motto and mission, and has led to a lot of fun outcomes... Because open people are doing a lot of fun projects, have been doing a lot of fun projects, and that hasn't changed, and ... |
But a lot of it does come back to this question of "Who owns the thing?" And I admit, I have enough lawyer brainworms at this point that my immediate thought goes to "Okay, well, the contract of the--" and then one of you during the top prep said, "Well, what about like team ownership?" and I was "Oh, right." We talk i... |
So that's like the sort of lawyer brain answer, like "Well, yeah, okay, we're done here. It's been a nice podcast. Glad to talk to you all." But there's very much of, course, all these fractal little senses of "Well, okay, but what does it mean when the team -- team versus individual ownership?" Because in a lawyerly s... |
And there's also these questions of what exactly is it that you own? Because I spent several years of my career -- I am what we call a transactional lawyer. Basically, I do contracts. If the contract goes wrong, for some reason, that is somebody else's problem to argue about it in court. And so I've only ever been to c... |
\[10:10\] I guess those of you listening to this as a podcast can't see the face I just made... So just assume, like, perplexed; search Giffy for your favorite perplexed GIF, and that was me just now. So yeah, so where do you all want to start with that? \[laughs\] |
**Kris Brandow:** I also have a kind of meta view of some of this, because I think similar to the line of thought you were going down, where it's like, okay, there's the code that you've typed, the thing that you've written, but then there's the knowledge of writing it and the idea of the thing, and that's where the AP... |
I remember over the years talking to lawyers about all the non-competes and things that we tend to have, and one of the things that lawyers consistently told me, at least in New York, is that your employer has no right to the knowledge that you gain. So they can have ownership over the code that you write and the thing... |
**Luis Villa:** Oh, yeah. Absolutely. And by the way, you specifically called out New York, and Natalie said in the pre-chat that she wanted to ask about the EU... We as open source programmers, and open source developers of various sorts, tend to make an assumption that we can write a license that applies across the e... |
So copyright has been standardized across the entire world for 100 years, which makes it a good platform for lawyers to build a global system on. If you're talking about databases, no global platform, no global legal platform... So writing a database license is responsible for a lot of these gray hairs; again, sorry, p... |
And by the way, Kris, I think the other meta thing that's really interesting for programmers... I often like to remind developers that writing a contract is like writing code and then not executing it, at all. And you're just sort of reading it, and like, we all agree more or less on what the output should be, but unti... |
So everything that I say here is going to be based on like a handful of things. Part of the challenge in Oracle v. Google is that we'd all been operating under these assumptions about what copyright law was, but there had been no litigation over whether or not an API could be copyrightable since the '80s. So the closes... |
**Kris Brandow:** \[14:11\] There's one thing I want to stick a pin in before we move on, Angelica, and it's that idea of AI... And I also want to call out code generation, and I really want to talk about that later, because I think that's also like a very interesting thing. The first thing you said was "Oh, who's typi... |
**Luis Villa:** Absolutely. |
**Angelica Hill:** I will say, for those of us who weren't following that Google law case step by step every step of the way, was it had been litigated. What was the conclusion? |
**Luis Villa:** Well, so to take a step real quick back just to the very beginning, Oracle -- well, Sun had created Java, and originally the Apache Project sort of funded by IBM had reimplemented Java. Complete clean room, very strict, very effective clean room, as best as we could tell from the pieces afterwards. Lite... |
Ultimately, what happened after literally a decade of litigation - I think I was on my fifth job by the time the case ended... Like, from when the case -- actually, six jobs from when the case started to when the case ended. The case started with essentially Oracle claiming there's -- some other stuff I'm going to leav... |
The courts found essentially, through a series of rulings over the years in this case, that an API could be copyrightable independent of the implementation, but there was a plausible what we in the US call a fair use argument, that essentially, if you reimplement in a way that's particularly transformative, like you're... |
Lawyers like to say that Fair Use is simply the right to get sued... It's ambiguous; it's one of these things where, again, you can't know ahead of time what the outcome is going to be, and that, of course, makes it a playground mostly for large companies, unfortunately. So I think in some ways, that was not a great ou... |
**Break:** \[17:11\] |
**Angelica Hill:** I wanna ask one step back, and when we talk about code ownership, what exactly does it mean I own the code? ...whether I am an individual, a company or anything - does it mean I'm allowed to make money off it? Does it mean I can print it and hang it at home? Does it mean something else? |
**Luis Villa:** Well, I'm gonna give you my lawyer answer to that. Those of you whose GitHub accounts do things other than commit to other licenses - which is pretty much all I do these days with my GitHub account. We'll have better notions of code ownership as a cultural practice among programmers, like who's responsi... |
The basic system since at least the '60s in the US - I'm not sure exactly the timeline in the EU, but I would imagine similar - is that... Well, actually, let me go back even further. Copyright is intended to protect creative works. So what do you have to do to get copyright in a thing? And I'll explain what copyright ... |
So that is the key thing, is you are doing a creative thing, and it can be mediated by tools. And Kris, this gets to your point about the AI and where is copywriting there... It can be mediated by a typewriter, or a paintbrush, or I believe - that we don't really know for certain yet - it can be mediated by an AI. But ... |
Alright, so what happens once you've done that? Actually, before I get into what happens once you've done that, because I think there's an important exception... In the US at least, that creative -- what does it mean to be creative is not zero. It's pretty close to zero, but it's not zero. There's an important case cal... |
So if you do like a phone list of the 100 most awesome people in New York City - that's creative; you had to select -- one of the ways which you can be creative under US Copyright law is selection. If you pick those 100 people, then hey, you've done something creative, and your list of 100 people is copyrightable. But ... |
\[22:25\] But okay, so you've created this thing... So now what do you do? So now you've got copyright. What does copyright let you do? Copyright lets you control what others can do with it. It lets you decide who gets to use it, who gets redistribute it, who gets to modify it, within the certain limits. But it's prett... |
So the limits include what's called First Sale doctrine, which is, "Hey, I sold it to somebody. They can usually sell it to one other person." First Sale doctrine made a lot more sense in the era of like books. That's what creates used books stores, is First Sale doctrine; it means that I bought the copyrighted thing, ... |
Similarly, fair use says, "Hey, if you're using this for education, if you're using this for nonprofit purposes..." I'm oversimplifying a little bit here; the tests around fair use can be a little complicated. Critically, in our digital age, fair use in the US has expanded quite a bit to include what's called transform... |
So for example, Google Book Search is in some sense the biggest copyright violation in all of history, because it's literally copied systematically millions of books, made these digital copies. But then a court said, "Well, but actually, it's so different. It's so great." And they put strict controls around, you know, ... |
The flipside of this is that we just had court cases -- we had a court case a couple of years ago about the song Blurred Lines, some of you might have heard... And courts there actually said that even just sort of copying the style of the artist could potentially be a copyright infringement, which was a big surprise to... |
Next week there's going to be -- or no, tomorrow morning, actually, maybe... There's going to be a case about Andy Warhol doing -- a photograph of Prince that Andy Warhol transformed into one of his Andy Warhol canvases. And the Supreme Court -- it's a little weird, but I think that case might actually have a lot of im... |
I saw a research paper yesterday that said, "If you prompt Copilot to do code in the style of --" I'm forgetting the guy's name. Petrov, I think... A top Python programmer - that you actually get fewer vulnerabilities in your code if you prompt Copilot with the name of a top maintainer. And the flipside, the paper's au... |
So style is an issue that could potentially come up in code as well. That was a very long-winded answer to your question, Natalie. I apologize. |
**Natalie Pistunovich:** No, it was interesting. So you said that for code ownership it basically means who is allowed to sell and profit off that, who is allowed to give it their own personal interpretation... |
**Luis Villa:** \[26:16\] Yeah. |
**Natalie Pistunovich:** It's also who is who's there to answer in case of a problem, right? I wrote a piece of code that made my work lose a lot of money. Is the ownership on me? |
**Luis Villa:** Yeah, so that's where it gets complicated... And we have really good answers for that in the case of things like -- if you manufactured a car wheel, and the car wheel explodes because you used bad materials in that case, in the car wheel, then we have some well-developed laws and intuitions around "Okay... |
I think the European Union has published in the past year - including one last week, two weeks ago - papers on liability for software. The idea of - if a car wheel explodes and causes a car accident, we have a very clear idea of how we should figure out who is liable for that. If an AI goes wrong, or software goes wron... |
**Kris Brandow:** I feel like there's an interesting component to that as well, because when you think about what we create, we're just creating words on a page. The manufacturing process of turning that into something that does something is not necessarily something that the person who wrote the code does. So it's lik... |
**Luis Villa:** Yeah. The original history of this in the English and US law systems was that literally, to get to that point where "Hey, the car wheel explodes. We should sue the car manufacturer" involved a lot of people dying in train accidents, and the train companies being like, "Oh, but that's not our fault. We j... |
\[30:29\] And so the train companies for a long time were like "Well, look, it's just like a horse. This train is just like a horse. I can't be responsible." So at some point, the legal system was like, "Actually, this is ludicrous." And so a combination of courts and Congress changed the rules to make the train compan... |
Yeah, Angelica, I've actually got a British person on this podcast, I believe... So why am I not asking you the proper terms here? |
**Angelica Hill:** Yeah. footman's fault. |
**Luis Villa:** Exactly. It's the footman's fault. So I think what we're seeing is both an exciting and a terrifying time for lawyers; we are in the midst of one of these very rare technological changes. I think AI in particular is going to be that new train. Nobody really understands, nobody wants to take responsibili... |
I had a conversation with some lawyer friends last week that was like "How would you explain...?" And these are fairly sophisticated -- most either are programmers, or one of them is married to a programmer... And we've been doing tech law all for cumulatively many decades. How would you explain machine learning to a j... |
It's an exciting -- whoever gets to do it first, that's going to be a super-great lawyer job for somebody, but also - boy, when you screw it up... And we felt a lot of pressure in the Google Oracle trial, that this was something that if we got it wrong, it would really hurt open source... And I suspect every good lawye... |
**Kris Brandow:** I feel like there's the other side of the problem as well, because if you try and assign blame to the person who owns the copyright of code, there is a huge amount of code that we all depend on all the time that's maintained by some random dude in Nebraska... Like, individual people. And it's like, we... |
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