Copyright law has only ever applied to intellectual creations – where there is no creator, there is no work. This means that machine-generated code like that of GitHub Copilot is not a work under copyright law at all, so it is not a derivative work either. The output of a machine simply does not qualify for copyright protection – it is in the public domain.
This makes me uneasy - a bad photocopier that produces inexact copies is a machine, but it's output is clearly a matter of copyright.
This line of reasoning is dangerous in two respects: On the one hand, it suggests that even reproducing the smallest excerpts of protected works constitutes copyright infringement.
Again, I'm not sure that exact excerpts are necessary. Imagine a photocopier that produced a photographic negative of its input. No part of the output image would be the same as the input image. There is no part of the output you can point to and say "this is a copy of the input" - but it's still clearly a derived work, and subject to copyright.
The fallacy of Monolith is that it's playing fast and loose with Colour, attempting to use legal rules one moment and math rules another moment as convenient. When you have a copyrighted file at the start, that file clearly has the "covered by copyright" Colour, and you're not cleared for it, Citizen. When it's scrambled by Monolith, the claim is that the resulting file has no Colour - how could it have the copyright Colour? It's just random bits! Then when it's descrambled, it still can't have the copyright Colour because it came from public inputs. The problem is that there are two conflicting sets of rules there. Under the lawyer's rules, Colour is not a mathematical function of the bits that you can determine by examining the bits. It matters where the bits came from. The scrambled file still has the copyright Colour because it came from the copyrighted input file. It doesn't matter that it looks like, or maybe even is bit-for-bit identical with, some other file that you could get from a random number generator. It happens that you didn't get it from a random number generator. You got it from copyrighted material; it is copyrighted. The randomly-generated file, even if bit-for-bit identical, would have a different Colour. The Colour inherits through all scrambling and descrambling operations and you're distributing a copyrighted work, you Commie Mutant Traitor.
It matters where the bits came from. Even if they're not the same bits as the originals.
no subject
This makes me uneasy - a bad photocopier that produces inexact copies is a machine, but it's output is clearly a matter of copyright.
Again, I'm not sure that exact excerpts are necessary. Imagine a photocopier that produced a photographic negative of its input. No part of the output image would be the same as the input image. There is no part of the output you can point to and say "this is a copy of the input" - but it's still clearly a derived work, and subject to copyright.
In fact, I'm reminded of the classic What Colour are your bits?:
It matters where the bits came from. Even if they're not the same bits as the originals.