DOE 1 v. GitHub, Inc.

Background

The plaintiffs’ amended complaint asserted eight claims involving licensed computer code and Copilot: two claims under Sections 1202(b)(1) and 1202(b)(3) of the Digital Millennium Copyright Act (DMCA); two breach-of-contract claims; intentional and negligent interference with prospective economic relations; unjust enrichment; unfair competition; and negligence. The defendants were GitHub, Inc. and Microsoft Corporation, grouped in the order as “Defendant GitHub,” and the listed OpenAI entities, grouped as “Defendant OpenAI.”

The plaintiffs alleged that the defendants’ programs reproduced or modified their licensed code as output without proper copyright-management information. The defendants moved under Federal Rule of Civil Procedure 12(b)(1), which addresses subject-matter jurisdiction, and Rule 12(b)(6), which addresses failure to state a legally sufficient claim. The court had previously found standing for injunctive relief but had found no standing for damages because the plaintiffs had not alleged that their own code had been output.

Standing for Damages

The amended complaint added examples involving Does 1, 2, and 5. The court held that these plaintiffs adequately alleged a concrete, particularized injury sufficient to seek damages. The court rejected the argument that the plaintiffs could not establish injury because they themselves entered their code into Copilot to generate the examples. The motions to dismiss the damages claims for lack of standing were therefore denied as to Does 1, 2, and 5.

The court reached the opposite conclusion for Does 3 and 4 because they again failed to identify specific instances in which their code was output by Copilot. Their claims for damages were dismissed with prejudice. The court stated that Does 1, 2, and 5 had standing to pursue both injunctive relief and damages, while Does 3 and 4 had standing only to pursue injunctive relief.

Copyright Preemption

The defendants argued that several state-law claims were preempted by Section 301 of the Copyright Act. Copyright preemption prevents state-law claims from asserting rights equivalent to the exclusive rights protected by federal copyright law when the work falls within copyright’s subject matter.

The court held that the plaintiffs’ computer code fell within the subject matter of copyright. It further held that the intentional-interference, negligent-interference, unjust-enrichment, and negligence claims principally sought to protect rights equivalent to copyright rights, such as reproduction, distribution, and preparation of derivative works. The court also held that the unfair-competition claim was preempted to the extent it was based on those claims.

The court dismissed with prejudice the claims for intentional interference with prospective economic relations, negligent interference with prospective economic relations, unjust enrichment, and negligence. It also dismissed with prejudice the unfair-competition claim to the extent it was predicated on those claims.

DMCA Claims

The court held that claims under DMCA Sections 1202(b)(1) and 1202(b)(3) require an allegation involving identical copies, rather than merely modified or similar versions of a work. Because the amended complaint frequently described Copilot’s output as modified, near-identical, varied, or functionally equivalent code, the court found the allegations insufficient under those provisions.

The motions to dismiss the Section 1202(b)(1) and Section 1202(b)(3) claims were granted. Those claims were dismissed with leave to amend. The court said the plaintiffs could file an amended complaint within 21 days, solely to correct the deficiencies identified in the order. If they did not timely amend, all dismissed claims would be dismissed with prejudice.

Disposition

The order 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 identified state-law claims on copyright-preemption grounds; and granted as to the DMCA Section 1202(b)(1) and (b)(3) claims, which were dismissed with leave to amend. Judge Tigar signed the order.