Is a retroactive patent infringement possible? A software researcher (from an American university) published a new method/algorithm and then an implementation of it, licensed under the MIT license. I wrote to him to ask if he had filed a patent or if he intended to do so in the future and he told me that neither he nor the other authors intend to patent the method and that I don't have to worry about it (but I do it anyway). My doubts are: if I publish an application that uses this method (and/or part of the code), if one day the author patents the method (or sells the method to some company who then patents it), can I simply get out of trouble by removing the publication of the application or is there some form of retroactive infringement (does it make sense to speak of infringement if no patent existed when I published the software)? If yes, how much time do I have to unpublish my software before I can be sued for infringement (I mean, I can discover a bit later that a patent was filed!) how do I know if a patent is filed, since it may not have the same name of the publication? That is, how to find it? Thanks in advance.
If they have not filed before the publication, there will be no ability to later file in most of the world. In the U.S. there is a sort-of one year grace period to file after publication. You will not have a way to definitively know if there is an application pending until it publishes or issues. Normally an application publishes and is open for the public to see 18 months after the first priority filing. That applies to the rest of the world, but in the U.S. it is possible to opt-out of publication. In that case no one can see he application until the day it issues as a granted patent, if ever. If you are making, selling, offering for sale, using or importing an infringing process or product when a patent issues you could be sued for patent infringement. I do not see how this can be seen a &quot;retroactive&quot;. As a practical matter, if you fold immediately upon the patent issuing it is unlikely you will end up with any liability. You can set a search in more than one search facility to trigger if a patent is issued to one of the known inventors or use with other criteria but this is not foolproof. Edited Of course your product could infringe any number of patents unrelated and unbeknownst to the party who published the software. That party not patenting has nothing to do with what others may have filed before they published.
Before the AIA in 2012 both companies could apply for a patent and if one of the applicants thought they were both trying to patent the same thing they could initiate an interference proceeding. In that proceeding before the board, they each present their evidence as to date of conception and diligent effort from that point to the date of the first filing. The board decided which application went forward. Now the U.S. is with the rest of the world in first-to-file. It doesn’t matter who conceived first unless one actually stole the idea from the other. There is a new derivation procedure to try to prove that. I don’t think it has ever yet happened. One of the &quot;simultaneous&quot; inventors could publish the invention, putting into the public domain. If published before the other's filing date, it would theoretically prevent the other from getting a patent. In any case a patent owner can stop the other from making their product or charge a royalty. There is a narrow case under the AIA where one company has been using a process that another later patents and can retain a limited right to keep using that process but can’t move or expand operations. This is called Prior User Rights.
Basically, statement 3 above is correct. The owner of the copyright in a work may release that work unmder different, even incompatible, licenses, as many times as s/he chooses to do. None of these releases cancels or invalidates any other. A person who obtains a work from a site where it is listed under a particular license, may rely on that license grant. The owner may (if the site allows) modify the license or remove the posted work, but this does not invalidate the license granted to those who obtained the work before any modification or removal. An incorrect or incomplete copyright notice does not, under current law. invalidate the copyright, and to the best of my understanding will not invalidate either of the license mentioen in the question.
You Own The Code To answer your question on whether or not it is copyright infringement: Yes, you do own the rights to the written code but posting it on Github gives Github the right to store, archive, parse, and display Your Content, and make incidental copies, as necessary to provide the Service, including improving the Service over time. This license includes the right to do things like copy it to our database and make backups; show it to you and other users; parse it into a search index or otherwise analyze it on our servers; share it with other users; and perform it. To simply put it, no matter what license you use, you give GitHub the right to host your code and to use your code to improve their products and features. This license does not grant GitHub the right to sell Your Content. It also does not grant GitHub the right to otherwise distribute or use Your Content outside of our provision of the Service, except that as part of the right to archive your Content. So with respect to code that’s already on GitHub, I think the answer to the question of copyright infringement is fairly straightforward. Things aren’t quite as clear-cut in a scenario where Copilot is trained on code that is hosted outside of GitHub. In that situation, the copyright infringement question would hinge largely on the concept of fair use. If Copilot is being trained on code outside of GitHub, we accept that at least some of what they’re looking at is copyrightable work. So, the question then becomes if it’s fair use. Now, you ultimately can’t conclude definitively that something is fair use until you go to court and a judge agrees with your assessment. But I think there’s a strong case to be made that Copilot’s use of code is very transformative, a point which would favor the fair use argument. There is precedent for this sort of situation. Take the case of Google Books, for example. Google scanned millions of books, provided people who were doing research with the ability to search the book, and provided the user a small snippet of the text that the user was searching for in the book itself. The court did in fact find that was fair use. The use was very transformative. It allowed people to search millions of books. It didn’t substitute for the book itself. It didn’t really take away anything from the copyright holders; in fact, it made it easier for readers to access the work and actually opened a broader market for book authors. And, it was a huge value add on top of the copyrighted corpus. In the latter scenario, a lot depends on the thoroughness and the length of Copilot’s suggestions. The more complex and lengthy the suggestion, the more likely it has some sort of copyrightable expression. If a suggestion is short enough, the fact that it repeats something in someone else’s code may not make it copyrightable expression. There’s also the question of whether what’s being produced is actually a copy of what’s in the corpus. That’s a little unclear right now. GitHub reports that Copilot is mostly producing brand-new material, only regurgitating copies of learned code 0.1% of the time. But, we have seen certain examples online of the suggestions and those suggestions include fairly large amounts of code and code that clearly is being copied because it even includes comments from the original source code.
I'm not sure this would be a copyright violation. 17 USC 117 says: (a)Making of Additional Copy or Adaptation by Owner of Copy.—Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner... Due to the shutdown of the license server, it is impossible to use the program without an adaptation. It is therefore an "essential step in the utilization of the computer program", and not infringing, in my opinion.
You are suggesting strict liability for software bugs. You haven't tried to show any negligence or incompetence on Microsoft's part, but just appear to have assumed that the existence of a bug that causes harm should create liability. Strict liability is rare, at least in the US, and does not in general apply to software. Given strict adherence to the best practice in developing software, there will be bugs, so a bug is not itself evidence of any sort of wrongdoing on Microsoft's part. In real life, if there was strict liability for software bugs, nobody and no business would write software for the use of others, because of the ever-present potential of being wiped out by lawsuits despite all they could do.
In the US, the author would be able to wind an infringement lawsuit against the re-publisher. Title 17, the US copyright law codified, grants the author the exclusive right to authorize republication, and does not require that a person use their real name. The argument "It was on the internet, it's in the public domain" is utterly without legal merit. The same goes for the assertion that a person loses his rights if he is uncontactable. The author has stated the terms of the license, so there isn't even a reasonable argument that the infringement is innocent (unknowing: "I thought it was with permission). There is no requirement that you have to allow a potential user to hassle you about the license terms. The one thing that is special regarding anonymous and pseudonymous works is that under 17 USC 302, "copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first". For a work whose author is identified, copyright "endures for a term consisting of the life of the author and 70 years after the author’s death". This assumes that the host site has not preempted author's license: Stack Exchange, for example, preempts an author's exclusive right, so you can copy stuff from here accorting to the SE terms of usage.
Not having immediate access to the source doesn't preclude a finding of copyright infringement. If you have seen the source material, subconscious infringement can happen. However, in this example, both the short phrases doctrine and the merger doctrine would likely prevent the is_prime function from having copyright. Words and short phrases are not individually copyrightable, so the name would be free to take. Regarding the implementing code, if it isn't an exact copy (i.e. copy and paste), courts will apply the abstraction-filtration-comparision test. They may find that you took the selection and arrangement of instructions from the original source, albiet using different names. That selection and arrangement would probably be considered a substantial similarity and, if not for the merger doctrine, infringement. However, given the limited number of ways to express the prime-detection algorithm means that the expression of that idea has merged with the idea, and thus is not protected by copyright. (Or in some jurisdictions, merger is a defence to infringement rather than a bar to copyrightability).