U.S. District Judge Jon S. Tigar dismissed — for good this time — the developers' claim under Section 1202(b) of the DMCA, ruling that they again haven't shown that the tools are likely to produce work identical to theirs. Judge Tigar also threw out their request for punitive damages and unjust enrichment, agreeing with GitHub that the developers' claims "do not support the remedy they seek."
However, the judge left intact the developers' claim for breach of contract of open-source license violations.
A group of anonymous software developers first filed the consolidated proposed class actions against San Francisco-based artificial intelligence research company OpenAI LP, which makes ChatGPT, Microsoft Corp. and GitHub Inc. in November 2022. In particular, the developers take issue with artificial intelligence tools called Copilot and Codex, which GitHub launched in the summer of 2021.
The developers claim that Microsoft, which acquired GitHub for $7.5 billion in 2018, stole source code shared on public GitHub repositories to help build Copilot and Codex, which generate code through artificial intelligence.
In May 2023, Judge Tigar refused to toss the bulk of the litigation, finding that the threat the companies could use the code was enough to establish standing. However, he dismissed with leave to amend claims of fraud, negligence, unjust enrichment, unfair competition and violations of the California Consumer Privacy Act. And he threw out for good a civil conspiracy claim and a claim for declaratory relief.
In the most recent order, Judge Tigar said the developers again failed to meet Section 1202(b)'s identicality requirement. As the defendants pointed out, the developers haven't identified a "single example of Copilot producing an identical copy of any work," the judge noted. The developers' allegation that the programs released code published to GitHub by some of the developers isn't sufficient for the DCMA claim, he said.
And the developers' new allegations "fare no better," Judge Tigar said.
In the latest version of their complaint, they allege that if a user elects to not use the duplication-detection feature of Copilot, a user could possibly view an identical match of 150 characters and use it without attribution, according to the order. But while they say the tool has such a capability, they don't explain how the tool makes it "plausible" that Copilot will do so, the judge said.
Judge Tigar said the claim must be tossed for good, as he'd already thrown it out before and allowed the developers to refile it.
Still, Judge Tigar refused to dismiss their breach-of-contract claim, pointing to his prior order finding that the developers "sufficiently identified" contractual obligations that were allegedly breached.
"Having already determined that plaintiffs adequately stated a breach of contract claim, the court declines to reanalyze this issue," Judge Tigar said.
A Github spokesperson said in a statement, "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," the spokesperson said.
OpenAI, Microsoft and counsel for the developers didn't immediately respond to requests for comment late Friday.
The software developers are represented by Joseph R. Saveri, Cadio Zirpoli, Christopher K.L. Young, Louis A. Kessler, Elissa A. Buchanan, William W. Castillo Guardado and Holden Benon of Joseph Saveri Law Firm and Matthew Butterick.
OpenAI is represented by Allyson R. Bennett of Morrison Foerster LLP.
Microsoft and GitHub are represented by Annette L. Hurst of Orrick Herrington & Sutcliffe LLP.
The case is DOE 1 et al. v. GitHub Inc. et al., case number 4:22-cv-06823, in the U.S. District Court for the Northern District of California.
--Additional reporting by Dorothy Atkins. Editing by Jay Jackson Jr.
Update: This story has been updated to include comment from Github.
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