That is not the case when using AI generated code. There is no way to use it without the chance of introducing infringing code.
Because of that if you tell a user they can use AI generated code, and they introduce infringing code, that was a foreseeable outcome of your action. In the case where you are the owner of a company, or the head of an organization that benefits from contributors using AI code, your company or organization could be liable.
But if a lawsuit was later brought who would be sued? The individual author or the organization? In other words can an organization reduce its liability if it tells its employees "You can break the law as long as you agree you are solely responsible for such illegal actions?
It would seem to me that the employer would be liable if they "encourage" this way of working?
I think you’re looking for problems that don’t really exist here, you seem committed to an anti AI stance where none is justified.
If you don't think this is a problem take a look at the terms of the enterprise agreements from OpenAI and Anthropic. Companies recognize this is an issue and so they were forced to add an indemnification clause, explicitly saying they'll pay for any damages resulting in infringement lawsuits.
Humans routinely produce code similar to or identical to existing copyrighted code without direct copying.
On independent creation: you are conflating the tool with the user. The defense applies to whether the developer had access to the copyrighted work, not whether their tools did. A developer using an LLM did not access the training set directly, they used a synthesis tool. By your logic, any developer who has read GPL code on GitHub should lose independent creation defense because they have "demonstrated capability to produce code directly from" their memory.
LLM memorization/regurgitation is a documented failure mode, not normal operation (nor typical case). Training set contamination happens, but it is rare and considered a bug. Humans also occasionally reproduce code from memory: we do not deny them independent creation defense wholesale because of that capability!
In any case, the legal question is not settled, but the argument that LLM-assisted code categorically cannot qualify for independent creation defense creates a double standard that human-written code does not face.
Practically speaking humans do not produce code that would be found in court to be infringing without intent.
It is theoretically possible, but it is not something that a reasonable person would foresee as a potential consequence.
That’s the difference.
> LLM memorization/regurgitation is a documented failure mode, not normal operation (nor typical case).
Exactly. It is a documented failure mode that you as a user have no capacity to mitigate or to even be aware is happening.
Double standards are perfectly fine. LLMs are not conscious beings that deserve protection under the law.
>not settled.
What appears to likely be settled is that human authorship is required, so there’s no way that an LLM could qualify for independent creation.
They wouldn't be some patsy that is around just to take blame, but the actual responsible party for the issue.
You hire an independent contractor and tell him that he can drive 60 miles per hour if he wants to but if it explodes he accepts responsibility.
He does and it explodes killing 10 people. If the family of those 10 people has evidence you created the conditions to cause the explosion in order to benefit your company, you're probably going to lose in civil court.
Linus benefits from the increase velocity of people using AI. He doesn't get to put all the liability on the people contributing.
Anyone who thinks they have a strong infringement case isn’t going to stop at the guy who authored the code, they’re going to go after anyone with deep pockets with a good chance of winning.
There is still the "mens rea" principle. If you distribute infringing material unknowingly, it would very likely not result in any penalties.