On November 4th, a class action lawsuit — Doe 1 v. GitHub Inc., N.D. Cal., No. 3:22-cv-06823, 11/3/22 — was filed in the US District Court in the Northern District in California, alleging against Microsoft and GitHub (a Microsoft subsidiary), inter alia: violation of the DMCA; breach of contract; tortious interference in a contractual relationship; unjust enrichment; unfair competition; violation of California Consumer Privacy Act; and negligence. Also sued were a confusing mishmash of for profit and non-profit related entities all using a variation of the name OpenAI (OpenAI, Inc., OpenAI, LLC, OpenAI Startup Fund GP I, L.L.C.; you get the picture). OpenAI received one billion dollars in funding from Microsoft although they seem “officially unrelated.” //

Plaintiffs allege that OpenAI and GitHub assembled and distributed a commercial product called Copilot to create generative code using publicly accessible code originally made available under various “open source”-style licenses, many of which include an attribution requirement. As GitHub states, “…[t]rained on billions of lines of code, GitHub Copilot turns natural language prompts into coding suggestions across dozens of languages.” The resulting product allegedly omitted any credit to the original creators. //

As a final note, the complaint alleges a violation under the Digital Millennium Copyright Act for removal of copyright notices, attribution, and license terms, but conspicuously does not allege copyright infringement. A material breach of a copyright license can give rise to an infringement claim, so this is an interesting move. While the plaintiffs’ attorney indicated that an infringement claim might be added later, I suspect that this was done to avoid a messy fair use dispute. The complaint includes a statement by GitHub asserting an expansive, almost global fair use assertion which is at odds with explicit relevant law in many countries and frankly at odds even with US law. Nonetheless, fair use as a defense is expensive and complicated to litigate, so perhaps they chose to focus on something that is beyond factual dispute, and still provides the same damages.