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 generated 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.
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.
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 generated 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.
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.