The developers suing over GitHub Copilot got dealt a major blow in court

A judge has tossed nearly all of the claims a group of developers brought against GitHub, Microsoft, and OpenAI in a copyright lawsuit filed in 2022, as reported earlier by The Register. In a court order unsealed last week, a California judge left only two claims standing: one that accuses the companies of an open-source license violation and another that alleges breach of contract.

The original lawsuit made 22 claims against the trio, accusing them of violating copyright laws by allowing the AI-powered GitHub Copilot coding assistant to train on developers’ work. Microsoft, the owner of GitHub, uses OpenAI’s technology to power the tool. All three companies asked the court to throw out the lawsuit in January, but Judge Jon Tigar denied their request.

However, Judge Tigar’s latest ruling deals a blow to the accusation that GitHub Copilot violates the Digital Millennium Copyright Act (DMCA) by suggesting code without proper attribution. Although the court previously ruled that Copilot’s suggested code wasn’t close enough to its original source, an amended version of the complaint takes issue with GitHub’s duplication detection filter, which users can toggle on to “detect and suppress” Copilot suggestions matching public code found on GitHub.

The amended lawsuit argues that GitHub gives users the option to “receive identical code” when the filter is turned off. It also cites a study that shows how AI models can “memorize” and regurgitate parts of their training data, which could potentially include copyrighted code.

This didn’t hold up in court, as Judge Tigar determined that the code GitHub allegedly copied from developers wasn’t similar enough to their original work. He also mentions a part of the cited study that says GitHub Copilot “rarely emits memorized code in benign situations.” Judge Tigar dismissed this allegation with prejudice, meaning the developers can’t refile the claim. The court also dismissed requests for punitive damages, as well as monetary relief in the form of unjust enrichment.

This doesn’t mean the lawsuit is over. Litigation will likely continue with the developers’ claims regarding breach of contract and open-source license violations.