Re: [MAINTAINERS SUMMIT] Annotating patches containing AI-assisted code

["Paul E. McKenney" <paulmck@kernel.org>]

On Tue, Aug 19, 2025 at 06:16:10PM +0200, Mauro Carvalho Chehab wrote:
> On Tue, Aug 19, 2025 at 04:23:46PM +0100, James Bottomley wrote:
> > On August 18, 2025 10:07:29 PM GMT+01:00, Mauro Carvalho Chehab <mchehab+huawei@kernel.org> wrote:
> > >Em Tue, 12 Aug 2025 07:42:21 -0700
> > >"Paul E. McKenney" <paulmck@kernel.org> escreveu:
> > [...]
> > > do agree that many of the lawsuits seem to be motivated by an
> > >> overwhelmening desire to monetize the output of AI that was induced by
> > >> someone else's prompts, if that is what you are getting at.  It does seem
> > >> to me personally that after you have sliced and diced the training data,
> > >> fair use should apply, but last I checked, fair use was a USA-only thing.
> > >
> > >Maybe, but other Countries have similar concepts. I remember I saw an
> > >interpretation of the Brazilian copyright law once from a famous layer
> > >at property rights matter, stating that reproducing small parts of a book, 
> > >for instance, could be ok, under certain circumstances (in a concept
> > >similar to US fair use).
> > 
> > Yes, technically.  Article 10 of the Berne convention contains a weaker concept allowing quotations without encumbrance based on a three prong test that the quote isn't extensive,  doesn't rob the rights holder of substantial royalties and doesn't unreasonably prejudice the existing copyright rights.
> 
> Exactly. The interpretation from such speech I mentioned is based on that.
> Now, exactly what is substantial is something that could be argued.
> 
> There are two scenarios to consider:
> 
> 1. AI using public domain or Open Source licensed code;
> 
> There are so many variations of the same code patterns that AI
> was trained, that it sounds unlikely that the produced output would
> contain a substantial amount of the original code.
> 
> 2. Public AI used to developt closed source 
> 
> If someone from VendorA trains a public AI to develop an IP protected driver
> for HardwareA with a very specialized unique code, and someone asks the
>  same AI to:
> 
> 	"write a driver for HardwareA"
> 
> and get about the same code, then this would be a possible legal issue. 
> 
> Yet, on such case, the developer from VendorA, by using a public AI,
> and allowed it to be trained with the code, opened the code to be used
> elsewhere, eventually violating NDA. For instance, if he used
> Chatgpt, this license term applies:
> 
> 	"3. License to OpenAI
> 
> 	 When you use the service, you grant OpenAI a license to use
> 	 your input for the purpose of providing and improving the 
> 	 service—this may include model training unless you’ve opted out.
> 
> 	 This license is non-exclusive, worldwide, royalty-free, 
> 	 sublicensable—but it's only used as outlined in the Terms of Use
> 	 and privacy policies."
> 
> So, if he didn't opt-out, it granted ChatGPT and its users a patent-free
> sublicensable code.
> 
> Ok, other LLM tools may have different terms, but if we end having
> to many people trying to monetize from it, the usage terms will be
> modified to prevent AI holders to face legal issues.
> 
> Still, while I'm not a lawyer, my understanding from the (2)
> is that if one uses it for closed source development and allowed
> implicitly or explicitly the inputs to be used for training, the one
> that will be be accounted for, in cases envolving IP leaking, is the
> person who submitted IP protected property to AI.

Many of the AI players scrape the web, and might well pull in training
data from web pages having a restrictive copyright.  The AI's output
might then be influenced by that restricted training data.  Although we
might desperately want this not to be a problem for AI-based submissions
to the Linux kernel, what we want and what the various legal systems
actually give us are not guaranteed to have much relation to each other.

							Thanx, Paul