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.