4:22-cv-06823
N.D. Cal.Jun 24, 2024Background
- Plaintiffs are GitHub users alleging that GitHub, Microsoft, and various OpenAI entities violated open-source licenses through the operation of Copilot and Codex, generative AI coding tools.
- Previous court orders dismissed Plaintiffs’ state-law claims (including unjust enrichment and negligence) and DMCA Section 1202(b) claim without prejudice, granting one last chance to amend the DMCA claim.
- Plaintiffs’ Second Amended Complaint (SAC) alleged only three remaining claims: (1) DMCA 1202(b) infringement, (2) breach of contract based on open-source licenses against all Defendants, and (3) breach of contract for selling licensed materials against GitHub.
- Plaintiffs cited new features (e.g., Copilot’s optional duplication-detection tool) and academic studies arguing memorization increases verbatim output risk.
- Defendants moved to dismiss all remaining claims. The Court granted in part and denied in part: it dismissed the DMCA claim with prejudice but allowed the breach of contract claims to proceed. Requests for unjust enrichment and punitive damages were denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| DMCA Section 1202(b) Claim (Identicality) | DMCA does not require identicality—can cover similar or derivative code | Ninth Circuit law requires output to be identical to original work | Dismissed with prejudice; identicality is required |
| Breach of Contract (Open-Source Licenses) | Defendants breached attribution, notice, and license terms | SAC fails to state a claim re: contracts or how Defendants breached | Not dismissed; claim is adequately pled |
| Joint Venture Liability (OpenAI/Copilot) | Copilot is a joint venture with shared control and profits | OpenAI lacks equal authority; only GitHub changes Copilot outputs | Not dismissed; joint venture allegations sufficient |
| Unjust Enrichment & Punitive Damages | Entitled to these remedies for breach of contract | California law disallows where express contracts govern | Dismissed; not available in this contractual context |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (Rule 12(b)(6) pleading requirement for plausibility)
- Jacobsen v. Katzer, 535 F.3d 1373 (breach of open-source license can give rise to contract claim)
- Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115 (terms outside the scope of a license can give rise to copyright infringement)
- Harris v. Atl. Richfield Co., 14 Cal. App. 4th 70 (punitive damages are generally not available for breach of contract)
- McBride v. Boughton, 123 Cal. App. 4th 379 (unjust enrichment is not a stand-alone cause of action under California law)