>Is Copilot's training on public repositories infringing copyright? Is it fair use?

My money's on yes, but this isn't settled until SCOTUS says so.

>How likely is the output of Copilot to generate actionable claims of violations on GPL-licensed works?

This depends on how likely Copilot is to regurgitate it's training input instead of generate new code. If it only does so IF you specifically ask it to (e.g. by adding Quake source comments to deliberately get Quake input), then the likelihood of innocent users - i.e. people trying to write new programs and not just launder source code - infringing copyright is also low. However, if Copilot tends to spit out substantially similar output for unrelated inputs, then this goes up by a lot. This will require an actual investigation into the statistical properties of Copilot output, something you won't really be able to do without unrestricted access to both the Copilot model and it's training corpus.

>How can developers ensure that any code to which they hold the copyright is protected against violations generated by Copilot?

I'm going to remove the phrase "against violations generated by Copilot" as it's immaterial to the question. Copilot infringement isn't any different from, say, a developer copypasting a function or two from a GPL library.

The answer to that, is that unless the infringement is obvious, it's likely to go unpunished. Content ID systems (which, AFAIK, don't really exist for software) only do "striking similarity" analysis; but the standard for copyright infringement in the US is actually lower: if you can prove access, then you only have to prove "substantial similarity". This standard is intended to deal with people who copy things and then change them up a bit so the judge doesn't notice. There is no way to automate such a check, especially not on proprietary software with only DRM-laden binaries available.

If you have source code, then perhaps you can find some similar parts. Indeed, this is what SCO tried to do to the Linux kernel and IBM AIX; and it turned out that the "copied" code was from far older sources that were liberally licensed. (Also, SCO didn't actually own UNIX.) Oracle also tried doing this to the Java classpath in Android and got smacked down by the Supreme Court. Having the source open makes it easier to investigate; but generally speaking, you need some level of suspicion in order to make it economic to investigate copyright infringement in software.

Occasionally, however, someone's copying will be so hilariously blatant that you'll actually find it. This usually happens with emulators, because it's difficult to actually hire for reverse engineering talent and most platform documentation is confidential. Maui X-Stream plagiarized and infringed PearPC (a PowerPC Macintosh emulator) to produce "CherryOS"; Atari ported old Humongous Entertainment titles to the Wii by copying ScummVM; and several Hyperkin clone consoles feature improperly licensed SNES emulation code. In every case, the copying was obvious to anyone with five minutes and a strings binary, simply because the scope of copied code was so massive.

>Is there a way for developers using Copilot to comply with free software licenses like the GPL?

Yes - don't use it.

I know I just said you can probably get away with stealing small snippets of code. However, if your actual intent is to comply with the GPL, you should just copy, modify, and/or fork a GPL library and be honest about it.

To add onto the FSF's usual complaints about software-as-a-service and GitHub following US export laws (which, BTW, the FSF also has to do, unless Stallman plans to literally martyr himself for--- oh god he'd actually do that); I'd argue that Copilot is unethical to use regardless of concerns over plagiarism or copyright infringement. You have no guarantee that the code you're actually writing actually works as intended, and several people have already been able to get Copilot to hilariously fail on even basic security-relevant tasks. Copilot is an autocomplete system, it doesn't have the context of what your codebase looks like. There are way better autocomplete systems that already exist in both Free and non-Free code that don't require a constant Internet connection to a Microsoft server.

>Should ethical advocacy organizations like the FSF argue for change in copyright law relevant to these questions?

I'm going to say no, because copyright law is already insane as-is and we don't need to make it worse just so that the copyleft hack still works a little better.

Please, for the love of god, we do not need stronger copyrights. We need to chain this leviathan.