Julia Reda's analysis depends on the factual claim in this key passage:
> In a few cases, Copilot also reproduces short snippets from the training datasets, according to GitHub’s FAQ.
> 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. This is not the case. Such use is only relevant under copyright law if the excerpt used is in turn original and unique enough to reach the threshold of originality.
That analysis may have been reasonable when the post was first written, but subsequent examples seem to show Copilot reproducing far more than the "smallest excerpts" of existing code. For example, the excerpt from the Quake source code[0] appears to easily meet the standard of originality.
> In a few cases, Copilot also reproduces short snippets from the training datasets, according to GitHub’s FAQ.
> 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. This is not the case. Such use is only relevant under copyright law if the excerpt used is in turn original and unique enough to reach the threshold of originality.
That analysis may have been reasonable when the post was first written, but subsequent examples seem to show Copilot reproducing far more than the "smallest excerpts" of existing code. For example, the excerpt from the Quake source code[0] appears to easily meet the standard of originality.
[0]: https://news.ycombinator.com/item?id=27710287