OpenAI, Microsoft want court to toss lawsuit accusing them of abusing open-source code

A Microsoft logo is seen a day after Microsoft Corp's (MSFT.O) $26.2 billion purchase of LinkedIn Corp (LNKD.N), in Los Angeles
A Microsoft logo is seen a day after Microsoft Corp's $26.2 billion purchase of LinkedIn Corp, in Los Angeles, California, U.S. REUTERS/Lucy Nicholson
  • Companies say allegations are not specific enough, cite fair-use defense
  • Anonymous plaintiffs say OpenAI and Microsoft are misusing copyrighted source code

(Reuters) - Microsoft Corp, Microsoft's GitHub Inc and OpenAI Inc told a San Francisco federal court that a proposed class-action lawsuit for improperly monetizing open-source code to train their artificial-intelligence systems cannot be sustained.

The companies said in Thursday court filings that the complaint, filed by a group of anonymous copyright owners, did not outline their allegations specifically enough and that GitHub's Copilot system, which suggests lines of code for programmers, made fair use of the source code.

A spokesperson for GitHub, an online platform for housing code, said Friday that the company has "been committed to innovating responsibly with Copilot from the start" and that its motion is "a testament to our belief in the work we've done to achieve that."

Representatives for OpenAI and the plaintiffs did not immediately respond to requests for comment Friday.

Two anonymous plaintiffs, seeking to represent a class of people who own copyrights to code on GitHub, sued Microsoft, GitHub and OpenAI in November. They said the companies trained Copilot with code from GitHub repositories without complying with open-source licensing terms, and that Copilot unlawfully reproduces their code.

Open-source software can be modified or distributed for free by any users who comply with a license, which normally requires attribution to the original creator, notice of their copyright, and a copy of the license, according to the lawsuit.

"Copilot's goal is to replace a huge swath of open source by taking it and keeping it inside a GitHub-controlled paywall," the complaint said. "It violates the licenses that open-source programmers chose and monetizes their code despite GitHub's pledge never to do so."

Microsoft and OpenAI said Thursday that the plaintiffs lacked standing to bring the case because they failed to argue they suffered specific injuries from the companies' actions.

The companies also said the lawsuit did not identify particular copyrighted works they misused or contracts that they breached.

Microsoft also said in its filing that the copyright allegations would "run headlong into the doctrine of fair use," which allows the unlicensed use of copyrighted works in some situations. The companies both 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.

Microsoft said Monday it would invest billions of dollars in the popular generative AI company OpenAI, which it first backed with $1 billion in 2019.

The source-code case is Doe v. GitHub Inc, U.S. District Court for the Northern District of California, No. 4:22-cv-06823.

For the plaintiffs: Joseph Saveri, Cadio Zirpoli and Travis Manfredi of the Joseph Saveri Law Firm; Matthew Butterick

For Microsoft: Annette Hurst, William Oxley and Alyssa Caridis of Orrick Herrington & Sutcliffe

For OpenAI: Michael Jacobs, Joseph Gratz and Tiffany Cheung of Morrison & Foerster

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Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets, for Reuters Legal. He has previously written for Bloomberg Law and Thomson Reuters Practical Law and practiced as an attorney. Contact: 12029385713