DOE 1 v. GitHub, Inc.

Background

The plaintiffs alleged that GitHub, Microsoft, and OpenAI used or reproduced computer code released under open-source licenses through Copilot and related programs. They alleged that some Copilot output was identical or nearly identical to their licensed code and lacked required copyright management information, such as attribution or license terms.

The defendants filed motions under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal for lack of subject-matter jurisdiction, and Rule 12(b)(6), which permits dismissal when a complaint does not plausibly state a legal claim. The court considered six of the eight claims in the amended complaint.

Standing for damages

The court had previously ruled that the plaintiffs could seek injunctive relief because they plausibly alleged a substantial risk that the defendants’ programs would reproduce their licensed code in the future. It had also ruled that the plaintiffs had not shown standing to seek damages because they had not alleged that their own code had been output.

In the amended complaint, Does 1, 2, and 5 alleged specific examples of their code being output by Copilot. The court held that these allegations showed a particularized injury sufficient to establish standing for damages, even though the plaintiffs themselves entered their code into the programs to generate the examples. The court therefore denied the motions to dismiss the damages claims for lack of standing as to Does 1, 2, and 5.

The court held that Does 3 and 4 still had not alleged specific instances in which Copilot output their code. It granted the motions to dismiss their damages claims for lack of standing with prejudice. The court summarized the result as follows: Does 1, 2, and 5 had standing to pursue both damages and injunctive relief, while Does 3 and 4 had standing only to pursue injunctive relief.

State-law claims and copyright preemption

The court granted the motions to dismiss the state-law claims for intentional and negligent interference with prospective economic relations, unjust enrichment, negligence, and unfair competition to the extent the unfair-competition claim was based on those other claims.

The court applied copyright preemption, which prevents state-law claims from asserting rights equivalent to the exclusive rights protected by federal copyright law. It held that the interference claims were based on alleged reproduction, distribution, or creation of derivative works; that the unjust-enrichment claim concerned unauthorized reproduction and derivative works; and that the negligence claim merely recharacterized alleged copyright infringement. Because the unfair-competition claim was based on those preempted claims, it was also preempted to that extent.

The court dismissed the interference, unjust-enrichment, and negligence claims with prejudice, concluding that the identified defects could not be cured. It also dismissed the unfair-competition claim with prejudice to the extent stated above.

Digital Millennium Copyright Act claims

The plaintiffs asserted claims under Sections 1202(b)(1) and 1202(b)(3) of the Digital Millennium Copyright Act. Those provisions concern removing or altering copyright management information and distributing works while knowing that such information was removed or altered without authorization.

The court held that these claims require the allegedly reproduced works to be identical. Because the amended complaint often described Copilot’s output as modified, varied, near-identical, or functionally equivalent rather than identical, the allegations did not state claims under Sections 1202(b)(1) and 1202(b)(3).

The court granted the motions to dismiss those claims but granted leave to amend. The plaintiffs could file an amended complaint within 21 days, and the court stated that any amendment was limited to correcting the deficiencies identified in the order. Failure to amend on time would result in dismissal of all dismissed claims with prejudice.

Disposition

The court’s conclusion states that the defendants’ motions to dismiss were denied in part and granted in part. The motions were denied as to the damages claims of Does 1, 2, and 5; granted with prejudice as to the damages claims of Does 3 and 4; granted as to the specified state-law claims on copyright-preemption grounds; and granted as to the Sections 1202(b)(1) and 1202(b)(3) claims, which were dismissed with leave to amend.