Fair Use Applies to Infringement
Claiming Fair Use outside of a courtroom is an admission of infringement. Fair Use does not apply when there is no infringement.
Fair Use is known as an affirmative defense that, although infringement has been established, the exceptions that courts are permitted to apply in decreeing fair use are very clear.
Public statements asserting fair use are baseless. The test is always in court. Software producers who make such claims need to pay better attention. Organizations that make such claims need better attorneys.
An informative example is from the lawsuit of Oracle against Google in which Google offered a fair use defense that failed in court concerning the ways the Java APIs were adopted for Android without obtaining a license. That determination followed *after* the determination of infringement.
There is a fair-use element that might apply in the Copilot case, although it being mechanical is going to create a difficult situation for courts, it seems to me. I am personally skeptical that a copyright violation suit can get very far, except perhaps around the willful use of covered works in the "training" of such mechanisms.
The Google situation with excerpts of works comes to mind. Since GitHub has explicit arrangements for announcements of copyright status and licenses on GitHub projects, it's odd to assert such a defense absent being taken to court. On the other hand, it is unclear who the plaintiff(s) would be in such an action.
Biting the hand that feeds IT
