Github and Microsoft Press Court for Dismissal of Developers’ OpenAI Software Piracy Class Action

On Thursday, defendants GitHub and Microsoft moved to dismiss a copyright lawsuit filed by two anonymous software developers alleging that the companies used developers’ software code to create an AI-based coding assistance product called Copilot. The defendants assert that the plaintiffs neither have standing to bring the suit nor that their claims have substantive merit.

The case centers on what the defendants call a “transformative technology,” a product of their OpenAI project, a high-profile non-profit artificial intelligence research company, which Microsoft recently promised to pump billions into, TechCrunch reported. “Copilot is a coding assistant tool that crystallizes the knowledge gained from billions of lines of public code, harnessing the collective power of open-source software and putting it at every developer’s fingertips,” the motion to dismiss said.  

The plaintiffs, by contrast, label the defendants’ actions as “software piracy on an unprecedented scale” and seek over $9 billion in damages. They claim that without consent, authorization, or licensure, the defendants used the plaintiffs’ and putative class members’ software code stored in a GitHub repository code to build and train Copilot.

The suit states claims under the Digital Millennium Copyright Act, the Lanham Act, the business practice, consumer protection, and privacy laws of California as well as for tortious conduct in connection with the defendants’ alleged mishandling of data. The developers demand an injunction in addition to damages.

Now, the defendants respond that the plaintiffs’ requested “multibillion-dollar windfall” makes no sense as they willingly shared software as open-source. The “anonymous detractors’” lawsuit, the defendants said, threatens to undermine open-source principles and halt significant advancements in collaboration and progress.

The defendants pressed the court to toss the suit on grounds that the plaintiffs fail to identify themselves and fail to allege that they suffered any actual or threatened injury at the hands of GitHub or Microsoft sufficient to give rise to a legitimate dispute. “There is no case or controversy here—only an artificial lawsuit brought by anonymous Plaintiffs built on a remote possibility that they will fail to be associated with an AI-generated code snippet that could in theory be connected to copyrightable aspects of their source code,” the motion ventured.

In addition, the defendants argued for dismissal for failure to state a claim on the basis that the plaintiffs’ causes of action are legally foreclosed, deficient because the factual allegations required to support the underlying elements are missing or implausible, or both.

As to the plaintiffs’ fraud-based claim, the motion says that in addition to falling short of the Federal Rules’ heightened specificity requirement, the economic loss rules bars recovery. Based on the defendants’ reading, the plaintiffs’ claim is merely that GitHub “failed to honor its representations,” which is really a breach of contract claim, and thus barred by the economic loss rule.

The dismissal hearing is scheduled for May 4 before Judge Jon S. Tigar.

The plaintiffs are represented by The Joseph Saveri Law Firm LLP and Matthew Butterick and Microsoft and Github by Orrick, Herrington & Sutcliffe LLP.