On November 3, a class action lawsuit was filed in a U.S. federal court in San Francisco against OpenAI, Microsoft and GitHub. The plaintiffs are challenging the legality of GitHub Copilot and OpenAI Codex, which allegedly violate the terms of the open source licenses. They are seeking $9 billion in damages.

Completion tools are designed to help developers gain productivity in an increasingly complex business. GitHub Copilot, an extension of Visual Studio Code, powered by OpenAI Codex, is an AI system created by OpenAI that is better at code generation than GPT-3, in part because it was trained on a dataset that includes a much higher concentration of public source code. It offers autocompletion of entire portions of code that the developer is free to accept or reject.

The launch of the Copilot technical preview had generated a lot of backlash in the developer community and, most notably, from the Free Software Foundation regarding copyright, ownership issues of AI-generated code, and legal impacts for GitHub authors.

The GitHub Copilot Dispute

On attorney and developer Matthew Butterick’swebsite dedicated to the litigation, GitHub Copilot is described as “an AI product that relies on unprecedented open source software piracy.”

After an investigation into GitHub Copilot, Matthew Butterick and the law firm Joseph Saveri filed suit against Open AI, Microsoft and GitHub for violating the legal rights of a large number of creators who published code or other works under open source licenses on GitHub. These open source licenses, including the Apache license, the GPL license, or the MIT license, all require attribution of authorship and copyright, which Copilot users do not have to do.

In addition to violating these attribution requirements, the plaintiffs accuse them of violating:

• GitHub’s terms of use and privacy policies;
• The DMCA 1202, which prohibits the removal of copyright management information;
• The California Consumer Privacy Act;
• And other laws giving rise to related legal actions.

Matthew Butterick states on the site:

“This is the first step in what will be a long journey. As far as we know, this is the first class action lawsuit in the United States challenging the training and production of AI systems. It will not be the last. AI systems are not exempt from the law. Those who create and operate these systems must remain accountable. If companies like Microsoft, GitHub, and OpenAI choose not to follow the law, they should not expect us, the public, to stand idly by. AI needs to be fair and ethical for everyone.”

‘On November 10, a second class action lawsuit was actually filed on behalf of two other plaintiffs.

Translated from Les premières plaintes collectives contre GitHub Copilot ont été déposées