> I think this is the key point: reproduction is the issue, not training. And as noted in the study[1] reproduction doesn't usually happen unless you go to extra lengths to make it.
But Microsoft is selling a service capable of such reproduction. They're selling access to an archive containing copyrighted code.
To me it's the equivalent of selling someone a DVD set of pirated movies. The DVD set doesn't "reproduce" the copyrighted material unless you "prompt" it to (by looking through the set to find the movie, and then putting it in your DVD player), but it was already there to begin with.
Strongly disagree with your analogy here. Lots of services are capable of doing things that are against the law but in general it's the actual breaking of the law that is prosecuted.
The closest thing to what you are suggesting is the Napster ruling, where a critical part was that the whole service was only about copyright infringement. In the Github case most people are using it to write original code which is not a copyright violation so there is substantial non-infringing use.
But what I think doesn't matter. The judge disagreed with that interpretation too.
But Microsoft is selling a service capable of such reproduction. They're selling access to an archive containing copyrighted code.
To me it's the equivalent of selling someone a DVD set of pirated movies. The DVD set doesn't "reproduce" the copyrighted material unless you "prompt" it to (by looking through the set to find the movie, and then putting it in your DVD player), but it was already there to begin with.