Additionally, this raises another big issue. A few years ago, a couple guys used software (what you could argue was a primitive AI) to generated around 70 billion unique pieces of music which amounts to essentially every piece of copyrightable music using standard music scales.
Is the fact that they used software to develop this copyrighted material relevant? If not, then their copyright should certainly be legal and every new song should pay them royalties.
It seems that using a computer to generate results MUST be added as an additional bit of analysis when it comes to infringement cases and fair use if not a more fundamental acknowledgement that computer-generated content falls under a different category (I'd imagine the real argument would be over how much of the input was human vs how much was the system).
Of course, this all sets aside the training of AI using copyrighted works. As it turns out, AI can regurgitate verbatim large sections of copyrighted works (up to 80% according to this study[0]) showing that they are in point of fact outright infringing on those copyrights. Do we blow up current AI to maintain the illusion of copyright or blow up current copyright law to preserve AI?
To begin to answer your questions, I would suggest you study the Copyright Office's report (which is also not law, but their guidance for laypeople as written by their staff lawyers) at https://www.copyright.gov/ai/Copyright-and-Artificial-Intell...
Even if the code is line-for-line identical, the difference is in how much trust I am willing to give the code. If I have to work in the neighborhood of that code, I need to know what degree of skepticism I should be viewing it with.
ISTM the most efficient and objective solution is to invest in AI more on both sides of the fence.
(Yes, I put "AI-only" and "knowledgeable" in there as weasel words. But I think that with them, it is not currently a very controversial case.)