GitHub, OpenAI, Microsoft Use of Open-Source Code Class Action

This class action, against GitHub, Inc., Microsoft Corporation, OpenAI, Inc., and a group of OpenAI companies, makes allegations of software piracy, in reference to two programs. Codex, from OpenAI, the complaint claims, powers Copilot, a joint venture between GitHub and OpenAI. Microsoft has invested in OpenAI, the complaint alleges, and Copilot runs on its Azure platform. The complaint alleges that the companies used copyrighted materials for these two programs without following or even citing the original licenses.

Two classes have been proposed for this action, an Injunctive Relief Class and a Damages Class. Both have the same definition: All persons or entities domiciled in the US that (1) owned an interest in at least one US copyright in any work, (2) offered that work under one of GitHub’s Suggested Licenses, and (3) stored Licensed Materials in any public GitHub repositories at any time between January 1, 2015 and the present.

GitHub was created in 2008 to support open-source development by hosting open-source source code on its website. Developers publish materials under licenses. Using others’ materials generally requires attribution, which the complaint alleges is normally done by “including a copy of the license along with the name and copyright notice of the original author.”

In 2018, Microsoft acquired GitHub for $7.5 billion, then in 2019 invested another $1 billion in OpenAI. “On information and belief,” the complaint alleges, “Microsoft exerts considerable control over OpenAI.”

Copilot uses artificial intelligence (AI) to fill in blocks of code for software coders. GitHub charges those who want to use it $10 per month or $100 per year.

However, the complaint alleges, “Copilot ignores, violates, and removes the Licenses offered by thousands—possibly millions—of software developers, thereby accomplishing software piracy on an unprecedented scale. Copilot outputs text derived from Plaintiffs’ and the Class’s Licensed Materials without adhering to the applicable License Terms and applicable laws.”

Why does the plaintiff believe that others’ materials were used? The companies have admitted that the training data used for Codex and Copilot, the complaint alleges that “includes data in vast numbers of publicly accessible repositories on GitHub, which include and are limited by Licenses.” The complaint claims, “Copilot often simply reproduces code that can be traced back to open-source repositories or open-source licensees.” However, the complaint alleges it does not acknowledge them.

“Among other things,” the complaint charges, the companies “stripped Plaintiffs’ and the Class’s attribution, copyright notice, and license terms from their code in violation of the Licenses and Plaintiffs’ and the Class’s rights. [The companies] used Copilot to distribute the now-anonymized code to Copilot users as if it were created by Copilot.”

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

Article Type: Lawsuit
Topic: Copyright or Other Intellectual Property
Tags: Breach of Contract, Digital Millennium Copyright Act, Fraud, Intellectual Property, Licenses or Licensing, Software