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ABOUT THE CASE

This case represents the first major step in the battle against intellectual-property violations in the tech industry arising from artificial intelligence systems.

GitHub Copilot, an AI-based coding product made by GitHub in cooperation with OpenAI, appears to profit from the work of open-source programmers by violating the conditions of their open-source licenses. According to GitHub, Copilot has been trained on billions of lines of publicly-available code, leaving open-source programmers with serious concerns regarding license violations. Microsoft apparently is profiting from others' work by disregarding the conditions of the underlying open-source licenses and other legal requirements.

Copilot was announced by Microsoft in 2022. According to Microsoft, Copilot is an extension that works as an "AI pair programmer" that helps write code faster by auto-filling suggestions based on the code and comments written by the user on their editors (Visual Studio Code, Visual Studio, Neovim, etc.). It is powered by OpenAI’s Codex, which is trained on billions of lines of publicly available code.

However, according to reports, in practice, Copilot can act more as an auto-coder that suggests large blocks of code without alerting the Copilot user that the code is only useable subject to the terms of its open-source license. Microsoft has long been antagonistic to open-source software, waging a war against open-source pioneer Linux for decades as one notable example. This is why developers feared how Microsoft might leverage GitHub's central role in the open-source community when it first acquired GitHub for $7.5 billion in 2018. With Copilot those fears may be coming to fruition.

Microsoft has monetized Copilot by offering it as a subscription service. Although Copilot is free for verified students and maintainers of popular open-source projects, “Copilot requires running software that is not free, such as Microsoft’s Visual Studio IDE or Visual Studio Code editor.”

The Copilot FAQ states “You are responsible for the code you write with GitHub Copilot’s help” and admits “GitHub does not own the suggestions GitHub Copilot generates.” However, it also notes "about 1% of the time, a suggestion may contain some code snippets longer than ~150 characters that matches the training set." Independent analysis has found “[i]n files where Copilot is enabled, it accounts for nearly 40% of code in popular programming languages like Python.”

This lawsuit constitutes a critical chapter in an industry-wide debate regarding the ethics of training AI tools with data sourced without permission from their creators and what constitutes a fair use of intellectual property. Despite Microsoft’s protestations to the contrary, it does not have the right to treat source code offered under an open-source license as if it were in the public domain.

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CASE UPDATES

On November 3, 2022, the Joseph Saveri Law Firm, LLP and Matthew Butterick, a lawyer and open-source programmer, filed a complaint in the U.S. District Court for the Northern District of California, on behalf of open-source programmers against GitHub Copilot, its parent, Microsoft, and its AI-technology partner, OpenAI. This litigation alleges violations of open-source licenses.

In May 2023, the Court ruled on defendants’ motions to dismiss and one filed by plaintiffs to preserve their anonymity. The Court denied defendants' efforts to dismiss two of plaintiffs' most significant claims. Plaintiffs also prevailed regarding preserving their anonymity. This is a positive ruling for the plaintiffs and an important first step in the litigation.

On October 7, 2024, in the Ninth Circuit Court of Appeals, Plaintiff-Petitioners filed a Petition for Permission to Appeal Order Certified Under 28 U.S.C. § 1292(b). This appeal presents an unresolved and critical question of statutory interpretation under the Digital Millennium Copyright Act: whether 17 U.S.C. § 1202(b) requires that copies of works be “identical” in order for liability to attach. The Northern District of California recognized the importance of this question and certified an interlocutory appeal under 28 U.S.C. § 1292(b). Plaintiff-Petitioners request that the Ninth Circuit accept jurisdiction and provide a uniform rule—i.e., that there is no identicality requirement § 1202(b)—that will permit district courts to timely and correctly adjudicate the many emerging cases involving the intersection of copyright and generative AI technologies.

Please contact the firm (GitHub_Inquiries@saverilawfirm.com) if you have knowledge to share regarding this matter or if you would like to request a copy of the complaint. Any information you provide will be kept strictly confidential as provided by law unless and until you agree to publicly disclose the information.

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