As reported earlier, a judge dismissed nearly all claims filed by a group of developers against GitHub, Microsoft, and OpenAI in a 2022 copyright lawsuit. register. In a court order released last week, a California judge left only two charges in play: one accusing the companies of violating an open source license and another accusing the companies of breaching a contract.
The original lawsuit filed 22 claims against the trio, alleging they violated copyright law by allowing the AI-powered GitHub Copilot coding assistant to train developers on their work. Microsoft, the owner of GitHub, uses technology from OpenAI to power the tool. In January, all three companies asked the court to dismiss the lawsuit, but Judge Jon Teagar dismissed their request.
However, Judge Tigar’s latest ruling deals a blow to claims that GitHub Copilot violated the Digital Millennium Copyright Act (DMCA) by suggesting code without proper attribution. While the court previously ruled that Copilot’s proposed code wasn’t close enough to its original source, an amended version of the complaint raises questions about GitHub’s duplicate detection filter, which users can turn on to “detect and suppress” common code found with Matching Copilot suggestions are on GitHub.
The amended lawsuit alleges that GitHub gives users the option to “receive the same code” when the filter is turned off. It also cited research showing how artificial intelligence models “memorize” and reflect on portions of training data, which may include copyrighted code.
This didn’t hold up in court, as Judge Tigar determined that the code GitHub allegedly copied from the developers was not similar enough to their original works. He also mentioned part of the cited study that said GitHub Copilot “rarely emits memorized code in benign circumstances.” Judge Tigar dismissed the claim with prejudice, meaning the developer could not re-file its claim. The court also rejected requests for punitive damages and monetary relief in the form of unjust enrichment.
That doesn’t mean the litigation is over. Developers may continue to litigate claims for breach of contract and breach of open source licenses.
