GitHub CEO on why open source developers should be exempt from the EU’s AI Act

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GitHub CEO Thomas Dohmke says that open source developers should be made exempt from the European Union’s (EU) proposed new artificial intelligence (AI) regulations, adding that the opportunity is still there for Europe to lead on AI.

“Open source is forming the foundation of AI in Europe,” Dohmke said onstage at the EU Open Source Policy Summit in Brussels. “The U.S. and China don’t have to win it all.”

The regulations in question come via The Artificial Intelligence Act (AI Act), first proposed back in April 2021 to address the growing reach of AI into our every day lives. The rules would govern AI applications based on their perceived risks, and would effectively be the first AI-centric laws introduced by any major regulatory body.

The European Parliament is set to vote on a draft version of the AI Act in the coming months, and depending on what discussions and debates follow, it could be adopted by the end of 2023.

Open source + AI

As many will know, open source and AI are intrinsically linked, given that collaboration and shared data are pivotal to developing AI systems. As well-meaning as the AI Act might be, critics argue that it could have significant unintended consequences for the open source community, which in turn could hamper the progress of AI. The crux of the problem is that the Act would likely create legal liability for general purpose AI systems (GPAI), and bestow more power and control to the big tech firms given that independent open source developers don’t have the resources to contend with legal wrangles.

So, why would GitHub — a $7.5 billion U.S. company owned by Microsoft — be concerned about regulations on the other side of the pond? There are multiple reasons. Open source software by its very nature is distributed, and GitHub — which recently passed 100 million users — relies on developers globally. Indeed, a report from VC firm Runa Capital this week indicated that 58% of the fastest-growing open source startups are based outside the U.S., with Germany, France and the U.K. (though the U.K. isn’t governed by EU regulations) in particular central to this.

More importantly, perhaps, is the fact that Europe has emerged as a driving force behind tech regulations, evidenced by its GDPR data privacy and protection regulations. Put simply, what happens in Europe can ripple into other countries and quickly become a global standard.

“The AI act is so crucial,” Dohmke said onstage. “This policy could well set the precedent for how the world regulates AI. It is foundationally important. It is important for European technological leadership, and for the future of the European economy itself. It must be fair and balanced to the open source community.”

Big bucks

Microsoft and GitHub stand to benefit from a fertile open source landscape, evidenced by their potentially lucrative Copilot tool that helps developers code using technology trained on the work of open source developers. However, Microsoft, GitHub and AI research lab OpenAI, in which Microsoft is heavily invested, are facing a class action lawsuit for their endeavors.

Elsewhere, OpenAI’s much-hyped text-generating AI phenomenon ChatGPT is also in the spotlight, with the EU’s Internal Market Commissioner Thierry Breton noting in an interview with Reuters today that ChatGPT’s transformative and wide-reaching applications underscores the need for robust regulation.

“As showcased by ChatGPT, AI solutions can offer great opportunities for businesses and citizens, but can also pose risks,” Breton told Reuters. “This is why we need a solid regulatory framework to ensure trustworthy AI based on high-quality data.”

Pretty much the entire world of AI as we know it today has been built on an open source foundation, and anyone with an interest in commercializing AI needs the open source status quo to continue. The big tech firms, including Microsoft, recognize that they might have more legal battles on their hands as a result of impending AI regulations, but at the very least they don’t want open source developers deterred from their work.

Dohmke said that the AI Act can bring “the benefits of AI according to the European values and fundamental rights,” adding that lawmakers have a big part to play in achieving this.

“This is why I believe that the open source developers should be exempt from the AI act,” he said. “Because ultimately this comes down to people. The open source community is not a community of entities. It’s a community of people and the compliance burden should fall on entities, it should fall on companies that are shipping products. OSS developers are often just volunteers, many of them are working two jobs. They are hobbyists and scientists, academics and doctors, professors and university students all alike, and they don’t usually stand to profit from their contributions. They certainly don’t have big budgets, or their own compliance department.”

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