The judge overseeing the AI code-copying case filed against GitHub, OpenAI, and Microsoft has dismissed some but not all of the aggrieved developers' claims, leaving the plaintiffs a more limited but still potentially potent opportunity to challenge the alleged algorithmic reproduction of their source code.

In November 2022, four unidentified ("J. Doe") plaintiffs, subsequently upped to five, filed a lawsuit in the US alleging that Copilot, an AI code-suggestion tool built atop OpenAI's Codex model and deployed by Microsoft's GitHub, will reproduce publicly shared code in violation of copyright law and software licensing requirements.

Microsoft, GitHub, and OpenAI managed to get some of the claims dismissed, but not all of them, and the plaintiffs were allowed to file an amended complaint to address legal deficiencies in their arguments.

The amended complaint arrived in June 2023, and included the allegation that Copilot will emit slight variations of copyrighted code as a way to avoid verbatim output. And it made several claims under California law, rather than under federal copyright rules.

In a January 3, 2024 order [PDF], made public this week with redactions, Northern California District Judge Jon S. Tigar partially granted and partially denied the defendant companies' motion to dismiss.

Judge Tigar dismissed damage claims from two of the unidentified developer plaintiffs ("Does 3 and 4"). But he allowed the damage claims by "Does 1, 2, and 5" to proceed, which opens the door to seeking damages to the entire class of affected developers.

Previously, the plaintiffs were required to seek an injunction to prevent the alleged injuries from reoccurring in the future. Now, per the judge's ruling, they can also ask for damages for past harm.

The defendant companies, meanwhile, had more success dealing with the claims brought under California law in the amended complaint as opposed to the claims relying on federal law.

The judge agreed to dismiss the state law claims for intentional and negligent interference with prospective economic relations, unjust enrichment, negligence, and unfair competition. He did so because these are preempted by federal copyright law, and he did so with prejudice, meaning these cannot be refiled, with the caveat that the unfair competition claim could be revived if tied to federal copyright law rather than state law.

The judge also tossed the plaintiffs' claims under Sections 1202(b)(1) and 1202(b)(3) of the US Digital Millennium Copyright Act. These portions of the DMCA cover the intentional removal or alteration of copyright management information (CMI), which in this case refers to software license notices that developers are obliged to retain when they copy open source code, and to the distribution of copyrighted content when reasonably likely to induce infringement.

Judge Tigar in his order agreed with the defendant companies' argument that the alleged DMCA violations can only occur when the copied works are identical.

"Plaintiffs' amended complaint alleges that '[t]hough Output from Copilot is often a verbatim copy, even more often it is a modification: for instance, a near-identical copy that contains only semantically insignificant variations of the original Licensed Materials, or a modified copy that recreates the same algorithm,'" the judge's order states. "This, however, is not sufficient for a Section 1202(b) claim."

While the defendants have reduced the avenues of potential liability, they're still at risk of consequences. Two of the plaintiffs' core claims - that GitHub violated its terms of service by monetizing user code and that all of the defendants violated the open source licenses attached to the code emitted by Copilot and Codex - were not addressed in the judge's order.

So the plaintiff developers are moving ahead with those claims. They also now have the opportunity to seek monetary damages, and may yet look for a way to revive the unfair competition claim if copyright rules permit.

OpenAI did not immediately respond to requests for comment.

A spokesperson for Microsoft-owned GitHub told The Register, “We firmly believe AI will transform the way the world builds software, leading to increased productivity and most importantly, happier developers. We are confident that Copilot adheres to applicable laws and we’ve been committed to innovating responsibly with Copilot from the start. We will continue to invest in and advocate for the AI-powered developer experience of the future.” ®

https://www.theregister.com//2024/01/12/github_copilot_copyright_case_narrowed/