Microsoft, GitHub, OpenAI ask court to dismiss copyright lawsuit from anonymous plaintiffs

January 30, 2023

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Microsoft, GitHub, and OpenAI addressed a proposed class-action lawsuit filed by a group of anonymous copyright owners, who accused the companies of copyrighted source code misuse to power Copilot. The companies’ filings, submitted to a San Francisco federal court on Thursday, cite fair use and say that the lawsuit cannot be sustained as it “fails on two intrinsic defects: lack of injury and lack of an otherwise viable claim.”

Copilot was welcomed with copyright concerns from developers after some programmers noticed it producing their own copyrighted code without attribution or license. Programmer and lawyer Matthew Butterick took the first step in November to file a lawsuit against the companies concerned with the help of the Joseph Saveri Law Firm. The complaining party followed it with another proposed class action lawsuit representing two anonymous GitHub users as the plaintiffs. 

“Copilot’s goal is to replace a huge swath of open source by taking it and keeping it inside a GitHub-controlled paywall,” the complaint reads. “It violates the licenses that open-source programmers chose and monetizes their code despite GitHub’s pledge never to do so.”

Microsoft and GitHub, however, said in their filing that the plaintiffs failed to state a claim and provide sufficient information regarding the allegations. The two companies added that “there is no case or controversy here” and called the complaint “a series of hypothetical events.”

“Plaintiffs do not allege that this extraordinary new tool has harmed them in any way,” Microsoft and GitHub explained. “They do not explain how teaching Copilot about their code has taken anything from them. They do not allege that Copilot has done anything improper with their code, nor that GitHub or Microsoft did anything improper with their personal information.”

OpenAI shared the same idea, saying the plaintiffs “allege a grab bag of claims that fail to plead violations of cognizable legal rights.”

Microsoft and GitHub further stated that the initiating party of the lawsuit was the one undermining the open source principles “with their demand for an injunction and a multi-billion dollar windfall in connection with software that they willingly share as open source.”

The court hearing to dismiss the suit will be in May.

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