Judge dismisses lawsuit over GitHub Copilot AI coding assistant

A class-action lawsuit that challenged the legality of GitHub’s use of code samples to train its AI-driven coding assistant, Github Copilot, has for the most part been dismissed by a US District Court judge in San Francisco.

The lawsuit, first filed in Nov. 2022, claimed that GitHub’s training of the Copilot AI on public GitHub code repositories violated the rights of the “vast number of creators” who posted code under open-source licenses on GitHub.

The complaint alleged that “Copilot ignores, violates, and removes the Licenses offered by thousands — possibly millions — of software developers, thereby accomplishing software piracy on an unprecedented scale.”

Also named in the suit was GitHub owner Microsoft and OpenAI, the co-developer of Copilot.

The suit was filed by Matthew Butterick, a lawyer and open-source programmer, in conjunction with Joseph Saveri Law Firm. In a document providing background on the case the law firm said it “represents the first major step in the battle against intellectual-property violations in the tech industry arising from artificial intelligence systems,” and went on to argue that, “Despite Microsoft’s protestations to the contrary, it does not have the right to treat source code offered under an open-source license as if it were in the public domain.”

GitHub Copilot is a tool that suggests code snippets and functions in real time, right from the developer’s code editor. It is said to have been trained on billions of lines of code, a claim that, far from inspiring confidence, immediately drew the ire of the Free Software Foundation, which cried foul on Copilot’s use of freely licensed software.

In a decision first announced on June 24, but only unsealed and made public on July 5, California Northern District judge Jon S. Tigar wrote that “In sum, plaintiff’s claims do not support the remedy they seek. Plaintiffs have failed to establish, as a matter of law, that restitution for any unjust enrichment is available as a measure of plaintiffs’ damages for their breach of contract claims.”

Judge Tigar went on to state that “court dismisses plaintiffs’ section 1202(b) claim, this time with prejudice. The Court declines to dismiss plaintiffs’ claim for breach of contract of open-source license violations against all defendants. Finally, the court dismisses plaintiffs’ request for monetary relief in the form of unjust enrichment, as well as plaintiffs’ request for punitive damages.”