> But sufficiently complex obfuscation of infringement is very hard to distinguish from genuine originality.
for the purposes of copyright, originality is not required, just different expressions. It's ideas (aka, patent) that require originality.
The 'sufficiently complex obfuscation' is exactly what people's brains go through when they learn, and re-produced what they learnt in a different context.
I argue that AI-training can be considered to be doing the same.
(1) You leave your employer, don’t take any code with you, start your own company, reimplement your ex-employer’s product from scratch, but you do it in a very different way (different language, different design choices, different tech stack, different architecture)
(2) You leave your employer, take their code with you, start your own company, make some superficial changes to their code to obscure your theft but the copying is obvious to anyone who scratches the surface
(3) You leave your employer, take their code with you, start your own company, start very heavily manually refactoring their code, within a few months it looks completely different, very difficult to distinguish from (1) unless you have evidence of the process of its creation
(4) You leave your employer, take their code with you, start your own company, download some “infringement obfuscation AI agent” from the Internet and give it your employer’s codebase, within a few hours it has transformed it into something difficult to distinguish from (1) if you didn’t know the history
(1) is unlikely to be held to be infringing. (2) is rather obviously going to be held to be infringing. But what about (3)? IANAL, but I suspect if you admitted that is how you did it, a judge would be unlikely to be very sympathetic. Your best hope would be to insist you actually did (1) instead. And then the outcome of the case might come down to whether the judge/jury believes your claim you actually did (1), or the plaintiff/prosecution’s claim you did (3).
And (4) is basically just (3) with AI to make it a lot faster and quicker. Such an agent likely doesn’t exist yet, but it could happen.
Timing is obviously a factor. If you leave your employer and launch a clone of their app the next week, everyone is going to think either you stole their code, or you were moonlighting on writing it (in which case they may legally own it anyway). If it takes you 12 months, it becomes more believable you wrote it from scratch. But if someone uses AI to launder code theft, maybe they can build the “clone” in a few days or weeks, and then spend a few months relaxing and recharging before going public with it
Numbers 2, 3, & 4 are all illegal because they start with an illegal action.
If I find a dollar on the sidewalk and put it in my wallets, is that stealing? If I punch a man getting change at a hotdog stand and a dollar falls on the sidewalk and then I put that in my wallet, is that stealing?
It doesn't matter what the scenario is after you stole code from your former employer, all actions are poisoned after.
Although the question is - obviously the ex-employee is likely to be found guilty of copyright infringement (civilly or criminally or both). But what is the copyright status of the resulting work? Does its infringing origins condemn it to always be infringing? Or at some point if it is refactored/rewritten enough it ceases to so be?
Imagine the ex-employee open sources it, and I’m an innocent third party using that code base, ignorant of its unlawful origins. Am I infringing their ex-employers copyright (even if unintentionally)? For (2), obviously “yes”. But what about (3) or (4)?
for the purposes of copyright, originality is not required, just different expressions. It's ideas (aka, patent) that require originality.
The 'sufficiently complex obfuscation' is exactly what people's brains go through when they learn, and re-produced what they learnt in a different context.
I argue that AI-training can be considered to be doing the same.