Microsoft, OpenAI, and GitHub Inc have told a San Francisco federal court that a proposed class-action lawsuit accusing them of improperly monetizing open-source code cannot be sustained. The companies stated that the complaint filed by anonymous copyright owners was not specific enough and that GitHub’s Copilot system, an AI tool developed by GitHub and OpenAI, made fair use of the source code.
Copilot is a cloud-based artificial intelligence tool developed by GitHub and OpenAI to assist software developers in coding by autocompleting code. It works with popular integrated development environments (IDEs) such as Visual Studio Code, Visual Studio, Neovim, and JetBrains. Currently available as a subscription-based service for individual developers, Copilot is best suited for users coding in Python, JavaScript, TypeScript, Ruby, and Go. The tool was first announced by GitHub on June 29, 2021, and has been made available for various IDEs since then.
The anonymous plaintiffs said that Microsoft and OpenAI trained Copilot with code from GitHub repositories without following open-source licensing terms and that it unlawfully reproduced their code. Open-source software can be modified or distributed for free with proper licensing, which usually requires attribution to the original creator and compliance with the license.
However, Microsoft and OpenAI said that the plaintiffs lacked standing to bring the case as they failed to argue they suffered specific injuries from the companies’ actions. They also said that the lawsuit did not identify the particular copyrighted works they misused or contracts they breached.
Microsoft also said that the copyright allegations would “run headlong into the doctrine of fair use,” which allows the unlicensed use of copyrighted works in some circumstances. They cited a 2021 U.S. Supreme Court decision that Google’s use of Oracle source code to build its Android operating system was transformative fair use.
A spokesperson for GitHub said that the company has been committed to innovating responsibly with Copilot and that their motion was a testament to their belief in the work they’ve done. The source-code case is Doe v. GitHub Inc and is ongoing in the U.S. District Court for the Northern District of California.
