Doe v. GitHub, Microsoft, and OpenAI

Doe v. GitHub, Microsoft, and OpenAI
CourtUnited States District Court for the Northern District of California
Court membership
Judge sittingJon Tigar

Doe v. GitHub, Microsoft, and OpenAI is a class action lawsuit filed in November 2022 by anonymous software developers against Microsoft, GitHub, and OpenAI.[1][2][3] The lawsuit alleges that GitHub's artificial intelligence (AI) coding assistant Copilot was trained on publicly available source code hosted on GitHub, including code released under open source licenses, and that it could reproduce portions of such code without complying with the relevant license terms or keeping the required copyright management information. The plaintiffs allege that this conduct violated the Digital Millennium Copyright Act (DMCA).[4] The original complaint also asserted claims for breach of contract, unfair competition, fraud, unjust enrichment, and violations of the California Consumer Privacy Act (CCPA).[5][6][7][8][9] The lawsuit has been described by plaintiffs’ lawyers as the first class action to address the training and outputs of AI models.[10][11]

The defendants argued that the plaintiffs had not established a concrete injury or identified legally cognizable rights that had been violated, that Copilot does not reproduce code verbatim, and that many of the plaintiffs' state law claims were preempted by the Copyright Act.[12][13][14][15][16]

By June 2024, Judge Jon Tigar dismissed most of the plaintiffs' claims, allowing the breach of contract claims based on the alleged violations of open source license terms to proceed.[17][18][6]

Background

GitHub, acquired by Microsoft in 2018, is a version-control and code-hosting platform where developers upload and share code.[19] Released on June 29, 2021, GitHub Copilot is an AI tool developed by GitHub and OpenAI designed to assist developers by providing autocompleted suggestions and generating code.[20][21] The tool was trained on public code hosted on GitHub, including code distributed under open source licenses, which often require attribution or other conditions on the redistribution of derivative works.[22][23][7]

Some programmers reported that GitHub Copilot could generate code suggestions that were nearly identical to code hosted on GitHub.[24][2] GitHub has maintained that the use of copyrighted code to train Copilot is protected under the fair use doctrine, which permits the use of copyrighted works without authorization under certain circumstances.[25][15]

Case

On November 3, 2022, lawyer and open source programmer Matthew Butterick and the Saveri Law Firm filed a class action complaint in the United States District Court for the Northern District of California on behalf of anonymous software developers.[26][13][2][1][3][27] The lawsuit concerns GitHub Copilot and OpenAI's Codex, whose technology is used in Copilot.[9][24][8] The plaintiffs alleged that GitHub, Microsoft, and OpenAI trained the AI system underlying Copilot on publicly available source code released under open source licenses and that Copilot could reproduce licensed code without complying with the terms of those licenses.[7][9][8][14] Rather than alleging direct copyright infringement under the Copyright Act,[11][2] which would have required litigating whether the defendants' conduct constituted fair use,[28][14] the complaint instead alleged violations of the DMCA, stating that Copilot could reproduce licensed code without the required copyright management information and that the defendants knowingly designed the system to disregard open source license requirements.[8][14][9][29] The plaintiffs sought statutory damages of over $9 billion, calculated based on the estimated number of alleged violations.[30][31][32][10][14]

The plaintiffs also alleged that the defendants engaged in unfair competition, committed fraud by misrepresenting how code hosted on GitHub would be used, breached GitHub's terms of service and privacy policy, and violated the CCPA by using protected personal information as training data, among other claims.[5][7][31]

Proceedings

In January 2023, lawyers for Microsoft, OpenAI, and GitHub filed a motion to dismiss, arguing that the plaintiffs lacked standing because they had not adequately alleged a concrete injury or identified cognizable rights that had been violated. The defendants also argued that GitHub's terms of service granted broad rights to use code hosted on the platform and challenged the plaintiffs' ability to proceed anonymously.[12][13][14][15][16]

In May 2023, Judge Tigar allowed the plaintiffs' breach of contract claim and portions of their DMCA claims to proceed, rejecting the defendants' argument that the plaintiffs had failed to identify examples of their code being reproduced and finding that they had plausibly stated their claims at that stage of the litigation.[7][14][8][33] The court dismissed the claims for declaratory relief and civil conspiracy with prejudice, as well as those concerning unfair competition, unjust enrichment, violations of the CCPA, and others, with leave to amend.[12][34][8] Judge Tigar also permitted the plaintiffs to continue litigating under pseudonyms.[12]

In June 2023, the plaintiffs filed an amended complaint focusing on Copilot's duplication detection filter, which is designed to filter out suggestions that match public code hosted on GitHub. The plaintiffs alleged that the feature was designed to introduce slight variations in suggested code to avoid reproducing exact copies.[4] It further alleged that disabling the filter could result in Copilot generating identical code.[18] The amended complaint also included examples from one of the anonymous plaintiffs that purportedly showed Copilot reproducing their code.[35]

In November 2023, the defendants argued that the amended complaint failed to establish a basis for damages. Lawyers for GitHub and Microsoft also maintained that Copilot does not reproduce code verbatim and argued that the plaintiffs' state law claims were preempted by the Copyright Act. In response, the plaintiffs argued that their claims arose from violations of open source license terms rather than copyright law and were not preempted. When Judge Tigar asked whether the claims were based on a right to control the distribution of code, the plaintiffs stated that precedent shows that open source licenses can create distinct property rights.[34]

In January 2024, the court held that several of the plaintiffs' state law claims, including negligence, intentional and negligent interference with prospective economic relations, and unjust enrichment, were preempted by the Copyright Act.[32] The court also concluded that the plaintiffs had failed to plausibly allege that Copilot reproduced identical copies of protected code, a requirement for bringing a claim under the DMCA. Finally, the court dismissed the claims for damages brought by two of the plaintiffs for lack of standing, allowing the remaining three plaintiffs' damages claims to proceed.[4]

In June 2024, Judge Tigar dismissed most of the remaining claims in the second amended complaint. The court dismissed the plaintiffs' DMCA claims with prejudice, concluding that the allegedly copied code was not sufficiently identical to the original works to support those claims.[29][17] The court also dismissed the plaintiffs' requests for unjust enrichment and punitive damages but allowed the breach of contract claims based on alleged violations of open source licenses to proceed.[6][18]

Reception

According to Wired, reactions to GitHub Copilot have been divided, with some developers arguing that it unfairly monetizes open source software and others defending it as a fair use of copyrighted code.[22] In June 2022, the Software Freedom Conservancy announced that it would cease using GitHub and encouraged other free and open source software projects to do the same. The organization cited Copilot as one of the reasons for its decision, claiming that the tool unfairly monetized free and open source software and criticizing Microsoft for declining to explain how license terms were addressed during Copilot's training.[36][24]

References

  1. 1 2 Xiang, Chloe (2022-11-04). "GitHub Users File a Class-Action Lawsuit Against Microsoft for Training an AI Tool With Their Code". VICE. Retrieved 2026-07-11.
  2. 1 2 3 4 Metz, Cade (2022-11-23). "Lawsuit Takes Aim at the Way A.I. Is Built". The New York Times. ISSN 0362-4331. Retrieved 2026-07-11.
  3. 1 2 Gain, Vish (2022-11-07). "US programmer sues Microsoft and OpenAI for open-source piracy". Silicon Republic. Archived from the original on 2025-01-17. Retrieved 2026-07-11.
  4. 1 2 3 Claburn, Thomas (2024-01-12). "GitHub Copilot copyright case narrowed but not neutered". The Register. Retrieved 2026-07-13.
  5. 1 2 "Doe v. GitHub, Inc". BakerHostetler. Retrieved 2026-07-11.
  6. 1 2 3 Ravia, Haim; Hammer, Dotan (2024-07-30). "Copyright Claims Against GitHub, Microsoft, and OpenAI Largely Dismissed". Pearl Cohen. Retrieved 2026-07-13.
  7. 1 2 3 4 5 "Developers Sue GitHub, Microsoft, and OpenAI Over Copyright in Creating AI Tool Copilot". Mogin Law LLP. 2025-06-08. Retrieved 2026-07-05.
  8. 1 2 3 4 5 6 Mello, Daniel; Maerker, Jenevieve; Berntsen, Matthew; Yang, Ming-Tao (2023-10-04). "Insights from the Pending Copilot Class Action Lawsuit". Finnegan, Henderson, Farabow, Garrett & Dunner LLP. Retrieved 2026-07-11.
  9. 1 2 3 4 McCombie, Don; Wong, James; Ireland, Chris (2022-12-20). "Trouble in the cockpit? Popular AI tool faces class action lawsuit". Clifford Chance. Retrieved 2026-07-11.
  10. 1 2 Wilkins, Alex (2022-11-08). "Microsoft's Copilot code tool faces the first big AI copyright lawsuit". New Scientist. Retrieved 2026-07-11.
  11. 1 2 DeGeurin, Mack (2022-11-23). "'A Brave New World of Software Piracy:' Lawsuit Takes Aim at Scrapping Methods Underpinning Modern Artificial Intelligence". Gizmodo. Retrieved 2026-07-11.
  12. 1 2 3 4 Hanson, Natalie (2023-05-11). "Microsoft, GitHub dodge bulk of class action over AI copyright issues". Courthouse News Service. Retrieved 2026-07-11.
  13. 1 2 3 Roth, Emma (2023-01-29). "Microsoft, GitHub, and OpenAI ask court to throw out AI copyright lawsuit". The Verge. Retrieved 2026-07-11.
  14. 1 2 3 4 5 6 7 Samuelson, Pamela (2023-06-22). "Legal Challenges to Generative AI, Part I". Communications of the ACM. 66 (7): 20–23. doi:10.1145/3597151. ISSN 0001-0782.
  15. 1 2 3 Brittain, Blake (2023-01-23). "OpenAI, Microsoft want court to toss lawsuit accusing them of abusing open-source code". Reuters. Archived from the original on 2025-07-25. Retrieved 2026-07-11.
  16. 1 2 Claburn, Thomas (2023-01-31). "Microsoft, GitHub, OpenAI want Copilot case dismissed". The Register. Retrieved 2026-07-11.
  17. 1 2 Connatser, Matthew (2024-07-08). "Judge dismisses DMCA copyright claim in GitHub Copilot suit". The Register. Retrieved 2026-07-13.
  18. 1 2 3 Roth, Emma (2024-07-09). "The developers suing over GitHub Copilot got dealt a major blow in court". The Verge. Retrieved 2026-07-13.
  19. ↑ Lohr, Steve (2018-06-04). "Microsoft Buys GitHub for $7.5 Billion, Moving to Grow in Coding's New Era". The New York Times. ISSN 0362-4331. Retrieved 2026-07-05.
  20. ↑ Thompson, Clive (2022-03-15). "How an AI Became My Code-Writing Genie". Wired. ISSN 1059-1028. Retrieved 2026-07-05.
  21. ↑ Smith, Craig S. (2022-03-15). "'No-Code' Brings the Power of A.I. to the Masses". The New York Times. ISSN 0362-4331. Retrieved 2026-07-05.
  22. 1 2 Barber, Gregory (2021-07-12). "GitHub's Commercial AI Tool Was Built From Open Source Code". Wired. ISSN 1059-1028. Retrieved 2026-07-05.
  23. ↑ Thompson, Clive (2022-03-15). "How an AI Became My Code-Writing Genie". Wired. ISSN 1059-1028. Retrieved 2026-07-05.
  24. 1 2 3 Claburn, Thomas (2022-10-19). "GitHub Copilot may steer Microsoft into a copyright lawsuit". The Register. Retrieved 2026-07-11.
  25. ↑ Gershgorn, Dave (2021-07-07). "Can AI learn from any public code online?". The Verge. Retrieved 2026-07-11.
  26. ↑ "DOE 1 et al v. GitHub, Inc. et al". PacerMonitor. Retrieved 2026-07-20.
  27. ↑ Quach, Katyanna (2022-11-07). "OpenAI, Microsoft, and GitHub hit with lawsuit over Copilot". The Register. Retrieved 2026-07-11.
  28. ↑ Claburn, Thomas (2023-01-31). "Microsoft, GitHub, OpenAI want Copilot case dismissed". The Register. Retrieved 2026-07-11.
  29. 1 2 Bastedo, Carly (2024-10-10). "Update in Copilot Copyright Claim may affect Future Challenges of Artificial Intelligence". Syracuse Law Review. Retrieved 2026-07-11.
  30. ↑ Samuelson, Pamela (2024-02-15). "How to Think About Remedies in the Generative AI Copyright Cases". Lawfare.
  31. 1 2 Aron, Hillel (2023-05-04). "Microsoft and GitHub ask court to scrap lawsuit over AI-powered CoPilot". Courthouse News Service. Retrieved 2026-07-11.
  32. 1 2 Hanson, Natalie (2024-01-22). "Judge trims code-scraping suit against Microsoft, GitHub". Courthouse News Service. Retrieved 2026-07-11.
  33. ↑ Claburn, Thomas (2023-05-12). "GitHub and OpenAI fail to wriggle out of Copilot lawsuit". The Register. Retrieved 2026-07-11.
  34. 1 2 Hanson, Natalie (2023-11-09). "GitHub mounts second attempt to toss anonymous code writers' claims of software piracy". Courthouse News Service. Retrieved 2026-07-11.
  35. ↑ Claburn, Thomas (2023-06-09). "GitHub accused of varying Copilot output to avoid copyright". The Register. Retrieved 2026-07-13.
  36. ↑ Sawers, Paul (2022-07-01). "Open source devs urged to ditch GitHub after Copilot launch". TechCrunch. Retrieved 2026-07-14.
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