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Microsoft, GitHub dodge bulk of class action over AI copyright issues

While breach of license and injury to property rights claims survived, a group of anonymous coders must try again to show how their privacy rights have been violated.

OAKLAND, Calif. (CN) — A judge has dismissed many software privacy claims against Microsoft, GitHub and OpenAI but left the door open for an anonymous group of code writers to improve their case.

The class action, filed in 2021, claims Microsoft and other companies’ AI-powered coding assistant, GitHub Copilot, relies on “software piracy on an unprecedented scale.” 

Unveiled by GitHub in 2021, CoPilot is trained on public repositories of code scraped from the web. Some of those get published using licenses requiring anyone reusing the code to credit the creators. Because it sometimes produces strings of licensed code without providing credit, the plaintiffs say it's copyright infringement and want penalties in excess of $9 billion.

But Microsoft, GitHub and OpenAI moved to dismiss the proposed class action. They say the claims fail due to lack of injury and failure to state an otherwise viable claim, as well as failing to plead violations of cognizable legal rights.

The companies argue the plaintiffs don’t describe how they were personally harmed by the tool or even identify themselves. They also argue that CoPilot simply helps developers write code by generating suggestions based on what it has learned from the entire body of knowledge gleaned from public code.

“With their demand for an injunction and a multibillion-dollar windfall in connection with software that they willingly share as open source, it is plaintiffs who seek to undermine those open source principles and to stop significant advancements in collaboration and progress," the defendants say. "They seem to say that Copilot could theoretically suggest a snippet of code that matches something they have published, and do so without giving them proper attribution.”

In a 25-page order issued Thursday, U.S. District Judge Judge Jon Tigar advanced the plaintiffs’ claims for breach of license and to file under pseudonyms to protect their identities. He said the plaintiffs sufficiently identified which contractual obligations were breached, as well as emails containing death threats that sufficiently proved their concern about identifying themselves. 

The judge also advanced the injury to property rights claim, finding that while the plaintiffs do not claim to have suffered the injury described, they plausibly argued that without injunctive relief there is a realistic danger CoPilot will reproduce their licensed code.

However, he dismissed their claims for civil conspiracy and declaratory relief with prejudice as they're not standalone claims.

Tigar also dismissed with leave to amend the claims for tortious interference in a contractual relationship, fraud and unjust enrichment, unfair competition, injury to privacy rights, breach of the GitHub privacy policy and terms of service, negligence and violation of the California Consumer Privacy Act. 

He said the plaintiffs can take another crack at their copyright preemption claim because their state law claims are qualitatively different from claims under the Copyright Act — being not only about the unauthorized reproduction of their code, but unauthorized use of any code. 

Tigar also found the unfair competition claim lacked adequate evidence of injury to the plaintiffs' intellectual property rights and subsequent monetary damages. 

Attorneys for GitHub did not respond to requests for comment before press time. The plaintiffs have 28 days to file an amended complaint. 

“In a complex case of this type, while we had hoped the court would have found our complaint sufficient in its entirety, this is not unusual,” the plaintiffs' attorney Joseph Saveri said in an email. 

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