(J. Doe 1, et al. v. GitHub Inc., et al., No. 24-7700, 9th Cir.)
(Order granting permission to appeal available. Document #46-250108-033R.)
The court granted the petition for appeal on Dec. 19.
Plaintiffs J. Doe 1 and J. Doe 2 claim to have shared licensed materials in which they owned a copyright interest to at least one repository under various suggested licenses on GitHub’s online platform, which is geared toward open-source collaboration. Per the licenses, they say use of the materials requires some form of attribution, such as the author’s name and copyright notice with a copy of the license. In October 2018, Microsoft Corp. acquired GitHub for $7.5 billion. In 2019, Microsoft invested $1 billion in OpenAI LP, which is the for-profit subsidiary of nonprofit AI research laboratory OpenAI Inc. A year later, Microsoft became the exclusive licensee of OpenAI’s autoregressive language model GPT-3. In 2021, Microsoft began offering GPT-3 through its Azure cloud-computing platform. Also in 2021, GitHub and OpenAI LP launched a generative AI-based software coding assistant tool called Copilot.
In November 2022, the Does filed a complaint in the District Court against GitHub and Microsoft (Microsoft), as well as several OpenAI entities (OpenAI). The Does assert that GitHub “ignores, violates, and removes the” corresponding licenses of many software developers that collaborated on the technology used in Copilot, resulting in “software piracy on an unprecedented scale.” They claim that their licensed materials was among those used in the development of Copilot, as well as Codex, another AI product that OpenAI released in 2021.
Claims Alleged
The Does seek to represent an injunctive relief class of U.S. residents that offered a copyrighted work under one of GitHub’s suggested licenses and stored licensed materials in one of its repositories since 2015. They also propose a corresponding damages class.
The plaintiffs allege direct, vicarious and contributory violation of the DMCA, 17 U.S.C § 1201 et seq., by removing or altering the copyright management information from the licensed materials used in the creation of the AI products. They alleged breach of contract related to the GitHub privacy policy and terms of service under the California Consumer Privacy Act, Cal. Civ. Code § 1798.150, and unjust enrichment and unfair competition under California’s unfair competition law, Cal. Bus. & Prof. Code § 17200 et seq.
The plaintiffs alleged common-law claims for breach of contract related to the open-source licenses, tortious interference in a contractual relationship, fraud, negligence in the form of negligent handling of personal data and civil conspiracy.
Claims were twice dismissed from the case, and the plaintiffs filed amended complaints. Then in a June 24, 2024, ruling, Judge Tigar partly granted a motion to dismiss by GitHub and Microsoft, finding that the plaintiffs failed to properly plead the required element of identicality for such a DMCA claim. The judge denied dismissal of a breach of contract claim, finding that the plaintiffs adequately alleged the existence of an open-source agreement that governed the sharing of items on GitHub’s online platform.
The plaintiffs on July 24 moved to amend and certify the ruling for interlocutory appeal and stay pending that appeal. The answer to the petition was filed under seal. On Sept. 27 the court granted interlocutory appeal, denied a request for additional briefing as unnecessary and sealed some of the record.
Counsel
The Does are represented by Joseph R. Saveri, Cadio Zirpoli, Christopher K.L. Young, Louis A. Kessler, Elissa A. Buchanan, William W. Castillo Guardado and Holden J. Benon of Joseph Saveri Law Firm LLP in San Francisco and Matthew Butterick in Los Angeles.
GitHub and Microsoft are represented by Annette L. Hurst and Daniel D. Justice of Orrick, Herrington & Sutcliffe LLP in San Francisco and William W. Oxley and Alyssa Caridis of the firm’s Los Angeles office.
OpenAI is represented by Joseph C. Gratz, Tiffany Cheung, Vera Ranieri, Joyce C. Li and Melody Ellen Wong of Morrison & Foerster LLP in San Francisco.
(Additional documents available: Plaintiffs’ petition for appeal to Ninth Circuit. Document #46-250108-034B. Order on motion to dismiss. Document #24-240718-036R. Second amended complaint. Document #24-240215-078C.)