Copilot Does Not Assert Ownership of the Code it Generates

ARGUMENT

II. PLAINTIFFS FAIL TO STATE A DMCA CLAIM.

D. Plaintiffs Have Not Plausibly Alleged That GitHub Or Microsoft Provides, Distributes, Or Imports For Distribution Any False CMI.

In addition to the failure to plead likely copyright infringement, Section B, supra, Plaintiffs’ claims under § 1202(a)(1)-(2) and (b)(2) also fail for an independent reason. Those provisions bar a defendant from “provid[ing] [CMI] that is false,” § 1202(a)(1), see Compl. ¶ 158; “distribut[ing] or import[ing] for distribution [CMI] that is false,” § 1202(a)(2), Compl. ¶ 158; and “distribut[ing] or import[ing] for distribution [CMI] knowing that the [CMI] has been removed or altered,” § 1202(b)(2), Compl. ¶ 153. But Plaintiffs fail to plausibly allege that GitHub or Microsoft provide, distribute, or import for distribution any CMI at all.

Plaintiffs’ only allegation in this regard is that “Defendants have a business practice of asserting and/or implying that Copilot is the author of the Licensed Materials.” Compl. ¶ 158. Plaintiffs provide no instance of such an assertion or implication, either as to works users place in public repositories or Copilot’s suggestions. And GitHub’s Terms of Service (“TOS”), attached to the Complaint, directly refute Plaintiffs’ allegation: “GitHub does not claim any rights in [Copilot] Suggestions, and you retain ownership of and responsibility for Your Code, including Suggestions you include in Your Code.” Compl. Ex. 1 at 38 (Copilot Additional Terms at 1).

In any event, Plaintiffs do not allege any distribution of CMI by GitHub or Microsoft at all, let alone false CMI. Section 1202(c) defines CMI as “information conveyed in connection with copies … of a work.” (emphasis added). Courts have construed the “in connection with copies” language to require a specific, close nexus between the information conveyed and the copy of the work. For example, a generic copyright notice on a webpage that was not “located on or next to [the plaintiff’s] photos” lacked sufficient connection. SellPoolSuppliesOnline.com, LLC v. Ugly Pools Ariz., Inc., 804 F. App’x 668, 670-71 (9th Cir. 2020); see Logan v. Meta Platforms, Inc., No. 22-cv-01847, 2022 WL 14813836, at *8 (N.D. Cal. Oct. 25, 2022). The Complaint identifies no information provided anywhere, let alone in connection with a copy of any work. As for their suggestion that GitHub or Microsoft “imply[]” authorship, implications are not “information” that can be provided, distributed, or imported for distribution. They are therefore not CMI at all. And even if they were, Plaintiffs point to no implication of authorship made in connection with a copy of a work. Plaintiffs’ claims under § 1202(a) and (b)(2) should therefore be dismissed.

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