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`
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`Joseph R. Saveri (State Bar No. 130064)
`Cadio Zirpoli (State Bar No. 179108)
`Travis Manfredi (State Bar No. 281779)
`JOSEPH SAVERI LAW FIRM, LLP
`601 California Street, Suite 1000
`San Francisco, California 94108
`Telephone:
`(415) 500-6800
`Facsimile:
`(415) 395-9940
`Email:
`jsaveri@saverilawfirm.com
`czirpoli@saverilawfirm.com
`tmanfredi@saverilawfirm.com
`
`
`Matthew Butterick (State Bar No. 250953)
`1920 Hillhurst Avenue, #406
`Los Angeles, CA 90027
`Telephone:
`(323) 968-2632
`Facsimile:
`(415) 395-9940
`Email:
`mb@buttericklaw.com
`
`Counsel for Individual and Representative
`Plaintiffs and the Proposed Class
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`Case No.
`
`COMPLAINT
`
`CLASS ACTION
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`
`
`DEMAND FOR JURY TRIAL
`
`J. DOE 1 and J. DOE 2, individually and on
`behalf of all others similarly situated,
`
`Individual and Representative Plaintiffs,
`
`v.
`
`GITHUB, INC., a Delaware corporation;
`MICROSOFT CORPORATION, a Washington
`corporation; OPENAI, INC., a Delaware
`nonprofit corporation; OPENAI, L.P., a
`Delaware limited partnership; OPENAI GP,
`L.L.C., a Delaware limited liability company;
`OPENAI STARTUP FUND GP I, L.L.C., a
`Delaware limited liability company; OPENAI
`STARTUP FUND I, L.P., a Delaware limited
`partnership; OPENAI STARTUP FUND
`MANAGEMENT, LLC, a Delaware limited
`liability company,
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`Defendants.
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`I. 
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`II. 
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`III. 
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`IV. 
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`V. 
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`VI. 
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`Case 4:22-cv-06823-KAW Document 1 Filed 11/03/22 Page 2 of 56
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`TABLE OF CONTENTS
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`
`OVERVIEW: A BRAVE NEW WORLD OF SOFTWARE PIRACY ..................... 1 
`
`JURISDICTION AND VENUE ........................................................................... 4 
`
`INTRADISTRICT ASSIGNMENT .................................................................... 4 
`
`PARTIES ............................................................................................................... 4 
`
`Plaintiffs ................................................................................................................ 4 
`
`Defendants ............................................................................................................ 5 
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`AGENTS AND CO-CONSPIRATORS ............................................................... 7 
`
`Class Definitions........................................................................................ 8 
`
`Numerosity ................................................................................................ 9 
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`CLASS ALLEGATIONS ...................................................................................... 8 
`A. 
`B. 
`C. 
`D. 
`
`Typicality ................................................................................................... 9 
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`Commonality & Predominance .................................................................. 9 
`
`1. 
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`2. 
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`3. 
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`4. 
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`5. 
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`6. 
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`DMCA Violations ......................................................................... 10 
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`Contract-Related Conduct ............................................................ 10 
`
`Unlawful-Competition Conduct ................................................... 10 
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`Privacy Violations ......................................................................... 10 
`
`Injunctive Relief ............................................................................ 11 
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`Defenses ....................................................................................... 11 
`
`E. 
`F. 
`
`Adequacy .................................................................................................. 11 
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`Other Class Considerations ...................................................................... 11 
`
`VII.  FACTUAL ALLEGATIONS ............................................................................... 12 
`A. 
`B. 
`
`Introduction .............................................................................................. 12 
`
`Codex Outputs Copyrighted Materials Without Following the Terms of
`the Applicable Licenses ............................................................................ 13 
`
`C. 
`
`D. 
`
`Copilot Outputs Copyrighted Materials Without Following the Terms of
`the Applicable Licenses ............................................................................ 18 
`
`Codex and Copilot Were Trained on Copyrighted Materials Offered Under
`Licenses .................................................................................................... 21 
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`E. 
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`Copilot Was Launched Despite Its Propensity for Producing Unlawful
`Outputs ................................................................................................... 22 
`
`F. 
`Open-Source Licenses Began to Appear in the Early 1990s ..................... 24 
`G.  Microsoft Has a History of Flouting Open-Source License Requirements
` ................................................................................................................ 26 
`
`H. 
`I. 
`J. 
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`GitHub Was Designed to Cater to Open-Source Projects ........................ 28 
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`OpenAI Is Intertwined with Microsoft and GitHub ................................. 30 
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`Conclusion of Factual Allegations ........................................................... 32 
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`VIII.  CLAIMS FOR RELIEF........................................................................................ 33 
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`IX. 
`
`X. 
`
`DEMAND FOR JUDGMENT ........................................................................... 50 
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`JURY TRIAL DEMANDED .............................................................................. 52 
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`
`
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`Plaintiffs J. Doe 1 and J. Doe 2 (“Plaintiffs”), on behalf of themselves and all others
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`similarly situated, bring this Class Action Complaint (the “Complaint”) against Defendants
`
`GitHub, Inc.; Microsoft Corporation; OpenAI, Inc.; OpenAI, L.P.; OpenAI GP, L.L.C.; OpenAI
`
`Startup Fund GP I, L.L.C.; OpenAI Startup Fund I, L.P.; and OpenAI Startup Fund
`Management, LLC1 for violation of the Digital Millennium Copyright Act, 17 U.S.C. §§ 1201–
`
`1205 (the “DMCA”); violation of the Lanham Act, 15 U.S.C. § 1125; violation of Unfair
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`Competition law, Cal. Bus. & Prof. Code §§ 17200, et seq.; violation of the California Consumer
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`Privacy Act, Cal. Civ. Code § 1798.150 (the “CCPA”); and Breach of Contract regarding the
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`Suggested Licenses, GitHub’s Privacy Statement, and GitHub’s Terms of Service, Cal. Bus. &
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`Prof. Code §§ 22575–22579, Cal. Civ. Code § 1798.150. Plaintiffs and the Class also bring this
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`Complaint against Defendants for their Tortious Interference in Plaintiffs’ Contractual
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`Relationships; Fraud, and Negligence regarding handling of sensitive data.
`I.
`
`OVERVIEW: A BRAVE NEW WORLD OF SOFTWARE PIRACY
`
`1.
`
`Plaintiffs and the Class are owners of copyright interests in materials made
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`available publicly on GitHub that are subject to various licenses containing conditions for use of
`
`those works (the “Licensed Materials.”). All the licenses at issue here (the “Licenses”) contain
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`certain common terms (the “License Terms”).
`2.
`
`“Artificial Intelligence” is referred to herein as “AI.” AI is defined for the
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`purposes of this Complaint as a computer program that algorithmically simulates human
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`reasoning or inference, often using statistical methods. Machine Learning (“ML”) is a subset of
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`AI in which the behavior of the program is derived from studying a corpus of material called
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`training data.
`
`1 GitHub, Inc. is referred to as “GitHub.” Microsoft Corporation is referred to as “Microsoft.”
`OpenAI, Inc.; OpenAI, L.P.; OpenAI GP, L.L.C.; OpenAI Startup Fund GP I, L.L.C.; OpenAI
`Startup Fund I, L.P.; and OpenAI Startup Fund Management, LLC are referred to collectively
`herein as “OpenAI.” Collectively, GitHub, Inc., Microsoft Corporation, OpenAI, Inc.; OpenAI,
`L.P.; OpenAI GP, L.L.C.; OpenAI Startup Fund GP I, L.L.C.; OpenAI Startup Fund I, L.P.; and
`OpenAI Startup Fund Management, LLC are referred to herein as “Defendants.”
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`3.
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`GitHub is a company founded in 2008 by a team of open-source enthusiasts. At
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`the time, GitHub’s stated goal was to support open-source development, especially by hosting
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`open-source source code on the website github.com. Over the next 10 years, GitHub, based on
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`these representations succeeded wildly, attracting nearly 25 million developers.
`4.
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`Developers published Licensed Materials on GitHub pursuant to written Licenses.
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`In particular, the most popular ones share a common term: use of the Licensed Materials requires
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`some form of attribution, usually by, among other things, including a copy of the license along
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`with the name and copyright notice of the original author.
`5.
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`On October 26, 2018, Microsoft acquired GitHub for $7.5 billion. Though some
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`members of the open-source community were skeptical of this union, Microsoft repeated one
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`mantra throughout: “Microsoft Loves Open Source”. For the first few years, Microsoft’s
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`representations seemed credible.
`6.
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`Microsoft invested $1 billion in OpenAI LP in July 2019 at a $20 billion valuation.
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`In 2020, Microsoft became exclusive licensee of OpenAI’s GPT-3 language model—despite
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`OpenAI’s continued claims its products are meant to benefit “humanity” at large. In 2021,
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`Microsoft began offering GPT-3 through its Azure cloud-computing platform. On October 20,
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`2022, it was reported that OpenAI “is in advanced talks to raise more funding from Microsoft” at
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`that same $20 billion valuation. Copilot runs on Microsoft’s Azure platform. Microsoft has used
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`Copilot to promote Azure’s processing power, particularly regarding AI.
`7.
`
`On information and belief, Microsoft obtained a partial ownership interest in
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`OpenAI in exchange for its $1 billion investment. As OpenAI’s largest investor and largest
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`service provider—specifically in connection with Microsoft’s Azure product—Microsoft exerts
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`considerable control over OpenAI.
`8.
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`In June 2021, GitHub and OpenAI launched Copilot, an AI-based product that
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`promises to assist software coders by providing or filling in blocks of code using AI. GitHub
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`charges Copilot users $10 per month or $100 per year for this service. Copilot ignores, violates,
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`and removes the Licenses offered by thousands—possibly millions—of software developers,
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`thereby accomplishing software piracy on an unprecedented scale. Copilot outputs text derived
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`
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`from Plaintiffs’ and the Class’s Licensed Materials without adhering to the applicable License
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`Terms and applicable laws. Copilot’s output is referred herein as “Output.”
`9.
`
`On August 10, 2021, OpenAI debuted its Codex product, which converts natural
`
`language into code and is integrated into Copilot. (Copilot and Codex can be called either AIs or
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`MLs. Herein they will be referred to as AIs unless a distinction is required.)
`Though Defendants have been cagey about what data was used to train the AI,2
`10.
`
`they have conceded that the training data includes data in vast numbers of publicly accessible
`repositories on GitHub,3 which include and are limited by Licenses.
`11.
`
`Among other things, Defendants stripped Plaintiffs’ and the Class’s attribution,
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`copyright notice, and license terms from their code in violation of the Licenses and Plaintiffs’ and
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`the Class’s rights. Defendants used Copilot to distribute the now-anonymized code to Copilot
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`users as if it were created by Copilot.
`12.
`13.
`
`Copilot is run entirely on Microsoft’s Azure cloud-computing platform.
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`Copilot often simply reproduces code that can be traced back to open-source
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`repositories or open-source licensees. Contrary to and in violation of the Licenses, code
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`reproduced by Copilot never includes attributions to the underlying authors.
`14.
`
`GitHub and OpenAI have offered shifting accounts of the source and amount of
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`the code or other data used to train and operate Copilot. They have also offered shifting
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`justifications for why a commercial AI product like Copilot should be exempt from these license
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`requirements, often citing “fair use.”
`15.
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`It is not fair, permitted, or justified. On the contrary, Copilot’s goal is to replace a
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`huge swath of open source by taking it and keeping it inside a GitHub-controlled paywall. It
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`violates the licenses that open-source programmers chose and monetizes their code despite
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`GitHub’s pledge never to do so.
`
`2 “Training” an AI, as described in greater detail below, means feeding it large amounts of data
`that it interprets using given criteria. Feedback is then given to it to fine-tune its Output until it
`can provide Output with minimal errors.
`3 Repositories are containers for individual coding projects. They are where GitHub users upload
`their code and where other users can find it. Most GitHub users have multiple repositories.
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`II.
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`JURISDICTION AND VENUE
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`16.
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`Plaintiffs bring this action on their own behalf as well as representatives of a Class
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`of similarly situated individuals and entities. They seek to recover injunctive relief and damages
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`as a result and consequence of Defendants’ unlawful conduct.
`17.
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`Jurisdiction and venue are proper in this judicial district pursuant to Defendants’
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`violation of the Digital Millennium Copyright Act, 17 U.S.C. §§ 1201–1205 (the “DMCA”);
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`Reverse Passing Off, Unjust Enrichment, and Unfair Competition under the Lanham Act, 15
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`U.S.C. § 1125; and because a substantial part of the events giving rise to Plaintiff’s claims
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`occurred in this District, Plaintiff J. Doe 1 resides in California, a substantial portion of the
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`affected interstate trade and commerce was carried out in this District, and three or more of the
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`Defendants reside in this District and/or are licensed to do business in this District. Each
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`Defendant has transacted business, maintained substantial contacts, and/or committed overt acts
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`in furtherance of the illegal scheme and conspiracy throughout the United States, including in
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`this District. Defendants’ conduct has had the intended and foreseeable effect of causing injury to
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`persons residing in, located in, or doing business throughout the United States, including in this
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`District.
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`III. INTRADISTRICT ASSIGNMENT
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`18.
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`Pursuant to Civil Local Rule 3.2 (c) and (e), assignment of this case to the San
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`Francisco Division of the United States District Court for the Northern District of California is
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`proper because a substantial amount of the development of the Copilot product as well as of the
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`interstate trade and commerce involved and affected by Defendants’ conduct giving rise to the
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`claims herein occurred in this Division. Furthermore, Defendants GitHub and all the OpenAI
`
`entities are headquartered within this Division.
`IV. PARTIES
`
`Plaintiffs
`19.
`
`Plaintiff J. Doe 1 is a resident of the State of California. Plaintiff Doe 1 published
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`Licensed Materials they owned a copyright interest in to at least one GitHub repository under
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`one of the Suggested Licenses. Specifically, Doe 1 has published Licensed Materials they claim a
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`
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`copyright interest in under the following Suggested Licenses: MIT License and GNU General
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`Public License version 3.0. Plaintiff was, and continues to be, injured during the Class Period as a
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`result of Defendants’ unlawful conduct alleged herein.
`20.
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`Plaintiff J. Doe 2 is a resident of the State of Illinois. Plaintiff Doe 2 published
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`Licensed Materials they owned a copyright interest in to at least one GitHub repository under
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`one of the Suggested Licenses. Specifically, Doe 2 has published Licensed Materials they claim a
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`copyright interest in under the following Suggested Licenses: MIT License; GNU General Public
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`License version 3.0; GNU Affero General Public License version 3.0; The 3-Clause BSD
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`License; and Apache License 2.0. Plaintiff was, and continues to be, injured during the Class
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`Period as a result of Defendants’ unlawful conduct alleged herein.
`
`Defendants
`21.
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`Defendant GitHub, Inc. is a Delaware corporation with its principal place of
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`business located at 88 Colin P Kelly Jr Street, San Francisco, CA 94107. GitHub sells, markets,
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`and distributes Copilot throughout the internet and other sales channels throughout the United
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`States, including in this District. GitHub released Copilot on a limited “technical preview” basis
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`on June 29, 2021. On June 21, 2022, Copilot was released to the public as a subscription-based
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`service for individual developers. GitHub is a party to the unlawful conduct alleged herein.
`22. Defendant Microsoft Corporation is a Washington corporation with its principal
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`place of business located at One Microsoft Way, Redmond, Washington 98052. Microsoft
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`announced its acquisition of Defendant GitHub, Inc. on June 4, 2018. On October 26, 2018,
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`Microsoft finalized its acquisition of GitHub. Microsoft owns and operates GitHub. Through its
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`corporate ownership, control of the GitHub Board of Directors, active management, and other
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`means, Microsoft sells, markets, and distributes Copilot. Microsoft is a party to the unlawful
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`conduct alleged herein.
`23.
`
`Defendant OpenAI, Inc. is a Delaware nonprofit corporation with its principal
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`place of business located at 3180 18th Street, San Francisco, CA 94110. OpenAI, Inc. is a party to
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`the unlawful conduct alleged herein. It—along with OpenAI, L.P.—programed, trained, and
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`maintains Codex, which infringes all the same rights at Copilot and is also an integral piece of
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`
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`5
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`Class Action Complaint
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`
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`Copilot. Copilot requires Codex to function. OpenAI, Inc. is a party to the unlawful conduct
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`alleged herein. OpenAI, Inc. founded, owns, and exercises control over all the other OpenAI
`
`entities, including those set forth in Paragraphs 24–28.
`24. Defendant OpenAI, L.P. is a Delaware limited partnership with its principal place
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`of business located at 3180 18th Street, San Francisco, CA 94110. OpenAI, L.P. is a party to the
`
`unlawful conduct alleged herein. Its primary activity is research and technology. OpenAI, L.P. is a
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`wholly owned subsidiary of OpenAI, Inc. that is operated for profit. OpenAI, L.P. is the OpenAI
`
`entity that co-created Copilot and offers it jointly with GitHub. OpenAI’s revenue, including
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`revenue from Copilot, is received by OpenAI, L.P. OpenAI, Inc. controls OpenAI, L.P. directly
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`and through the other OpenAI entities.
`25.
`
`Defendant OpenAI GP, L.L.C. (“OpenAI GP”) is a Delaware limited liability
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`company with its principal place of business located at 3180 18th Street, San Francisco, CA
`
`94110. OpenAI GP is the general partner of OpenAI, L.P. OpenAI GP manages and operates the
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`day-to-day business and affairs of OpenAI, L.P. OpenAI GP is liable for the debts, liabilities and
`
`obligations of OpenAI, L.P., including litigation and judgments. OpenAI GP is a party to the
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`unlawful conduct alleged herein. Its primary activity is research and technology. OpenAI GP is
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`the general partner of OpenAI, L.P. OpenAI GP was aware of the unlawful conduct alleged herein
`
`and exercised control over OpenAI, L.P. throughout the Class Period. OpenAI, Inc. directly
`
`controls OpenAI GP.
`26. Defendant OpenAI Startup Fund I, L.P. (“OpenAI Startup Fund I”) is a Delaware
`
`limited partnership with its principal place of business located at 3180 18th Street, San Francisco,
`
`CA 94110. OpenAI Startup Fund I was instrumental in the foundation of OpenAI, L.P., including
`
`the creation of its business strategy and providing initial funding. Through participation in
`
`OpenAI Startup Fund I, certain entities and individuals obtained an ownership interest in
`
`OpenAI, L.P. Plaintiffs are informed and believed, and on that basis allege that OpenAI Startup
`
`Fund I participated in the organization and operation of OpenAI, L.P. OpenAI Startup Fund I is a
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`party to the unlawful conduct alleged herein. OpenAI Startup Fund I was aware of the unlawful
`
`conduct alleged herein and exercised control over OpenAI, L.P. throughout the Class Period.
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`
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`27.
`
`Defendant OpenAI Startup Fund GP I, L.L.C. (“OpenAI Startup Fund GP I”) is
`
`a Delaware limited liability company with its principal place of business located at 3180 18th
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`Street, San Francisco, CA 94110. OpenAI Startup Fund GP I is the general partner of OpenAI
`
`Startup Fund I. OpenAI Startup Fund GP I manages and operates the day-to-day business and
`
`affairs of OpenAI Startup Fund I. OpenAI Startup Fund GP I is liable for the debts, liabilities and
`
`obligations of OpenAI Startup Fund I, including litigation and judgments. OpenAI Startup Fund
`
`GP I was aware of the unlawful conduct alleged herein and exercised control over OpenAI, L.P.
`
`throughout the Class Period. OpenAI Startup Fund GP I is a party to the unlawful conduct
`
`alleged herein. Sam Altman, co-founder, CEO, and Board member of OpenAI, Inc. is the
`
`Manager of OpenAI Startup Fund GP I. OpenAI Startup Fund GP I is the General Partner of
`
`OpenAI Startup Fund I, L.P.
`28. Defendant OpenAI Startup Fund Management, LLC (“OpenAI Startup Fund
`
`Management”) is a Delaware limited liability company with its principal place of business located
`
`at 3180 18th Street, San Francisco, CA 94110. OpenAI Startup Fund Management is a party to
`
`the unlawful conduct alleged herein. OpenAI Startup Fund Management was aware of the
`
`unlawful conduct alleged herein and exercised control over OpenAI, L.P. throughout the Class
`
`Period.
`
`V. AGENTS AND CO-CONSPIRATORS
`
`29.
`
`The unlawful acts alleged against the Defendants in this class action complaint
`
`were authorized, ordered, or performed by the Defendants’ respective officers, agents,
`
`employees, representatives, or shareholders while actively engaged in the management, direction,
`
`or control of the Defendants’ businesses or affairs.
`30.
`
`The Defendants’ agents operated under the explicit and apparent authority of
`
`their principals.
`31.
`
`Each Defendant, and its subsidiaries, affiliates and agents operated as a single
`
`unified entity.
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`Case 4:22-cv-06823-KAW Document 1 Filed 11/03/22 Page 11 of 56
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`
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`32.
`
`Various persons and/or firms not named as Defendants herein may have
`
`participated as coconspirators in the violations alleged herein and may have performed acts and
`
`made statements in furtherance thereof.
`33.
`
`Each acted as the principal, agent, or joint venture of, or for other Defendants with
`
`respect to the acts, violations, and common course of conduct alleged herein.
`VI. CLASS ALLEGATIONS
`
`A.
`
`Class Definitions
`34.
`
`Plaintiffs bring this action for damages and injunctive relief on behalf of
`
`themselves and all others similarly situated as a class action pursuant to Rules 23(a), 23(b)(2), and
`
`23(b)(3) of the Federal Rules of Civil Procedure, on behalf of the following Classes:
`
`“Injunctive Relief Class” under Rule 23(b)(2):
`All persons or entities domiciled in the United States that, (1)
`owned an interest in at least one US copyright in any work; (2)
`offered that work under one of GitHub’s Suggested Licenses4; and
`(3) stored Licensed Materials in any public GitHub repositories at
`any time between January 1, 2015 and the present (the “Class
`Period”).
`
`
`
`4 When a GitHub user creates a new repository, they have the option of selecting one of thirteen
`licenses from a dropdown menu to apply to the contents of that repository. (They can also apply a
`different license later, or no license.) The Creative Commons Zero v1.0 Universal and the
`Unlicense donate the covered work to the public domain and/or otherwise waive all copyrights
`and related rights. Because they do not contain the necessary provisions nor do they even allow
`the owner to make copyright claims in most circumstances, they are not included in the Class
`Definition. We refer to the remaining eleven options as the “Suggested Licenses,” which are: (1)
`Apache License 2.0 (“Apache 2.0”); (2) GNU General Public License version 3 (“GPL-3.0”);
`(3) MIT License (“MIT”); (4) The 2-Clause BSD License (“BSD 2”); (5) The 3-Clause BSD
`License (“BSD 3”); (6) Boost Software License (“BSL-1.0”); (7) Eclipse Public License 2.0
`(“EPL-2.0”); (8) GNU Affero General Public License version 3 (“AGPL-3.0”); (9) GNU
`General Public License version 2 (“GPL-2.0”); (10) GNU Lesser General Public License version
`2.1 (“LGPL-2.1”); and (11) Mozilla Public License 2.0 (“MPL-2.0”). These Suggested Licenses
`each contain at least three common requirements for use of the Licensed Materials in a derivative
`work or copy: attribution to the owner of the Licensed Materials (“Attribution”), inclusion of a
`copyright notice (“Copyright Notice”), and inclusion of the applicable Suggested License’s text
`(“License Terms”).
`
`
`
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`Case 4:22-cv-06823-KAW Document 1 Filed 11/03/22 Page 12 of 56
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`
`
`
`“Damages Class” under Rule 23(b)(3):
`
`All persons or entities domiciled in the United States that, (1)
`owned an interest in at least one US copyright in any work; (2)
`offered that work under one of GitHub’s Suggested Licenses; and
`(3) stored Licensed Materials in any public GitHub repositories at
`any time during the Class Period.
`
`These “Class Definitions” specifically exclude the following person or entities:
`a.
`b.
`c.
`d.
`
`Any of Defendants’ parent companies, subsidiaries, and affiliates;
`
`Any of Defendants’ officers, directors, management, employees,
`
`Any of the Defendants named herein;
`
`Any of the Defendants’ co-conspirators;
`
`e.
`f.
`
`subsidiaries, affiliates, or agents;
`
`All governmental entities; and
`
`The judges and chambers staff in this case, as well as any members of their
`
`immediate families.
`
`B.
`
`Numerosity
`35.
`
`Plaintiffs do not know the exact number of Class members, because such
`
`information is in the exclusive control of Defendants. Plaintiffs are informed and believe that
`
`there are at least thousands of Class members geographically dispersed throughout the United
`
`States such that joinder of all Class members in the prosecution of this action is impracticable.
`C.
`
`Typicality
`36.
`
`Plaintiffs’ claims are typical of the claims of their fellow Class members because
`
`Plaintiffs and Class members all own code published under a License. Plaintiffs and the Class
`
`published work subject to a License to GitHub later used by Copilot. Plaintiffs and absent Class
`
`members were damaged by this and other wrongful conduct of Defendants as alleged herein.
`
`Damages and the other relief sought herein is common to all members of the Class.
`D.
`
`Commonality & Predominance
`37.
`
`Numerous questions of law or fact common to the entire Class arise from
`
`Defendants’ conduct—including, but not limited to those identified below:
`
`
`
`
`
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`Case 4:22-cv-06823-KAW Document 1 Filed 11/03/22 Page 13 of 56
`
`1.
`
`2.
`
`3.
`
`4.
`
`DMCA Violations
` Whether Defendants’ conduct violated the Class’s rights under the DMCA
`
`when GitHub and OpenAI caused Codex and Copilot to ingest and distribute
`
`Licensed Materials without including any associated Attribution, Copyright
`
`Notice, or License Terms.
`
`Contract-Related Conduct
` Whether Defendants violated the Licenses governing use of the Licensed
`
`Materials by using them to train Copilot and for republishing those materials
`
`without appending the required Attribution, Copyright Notice, or License
`
`Terms.
` Whether Defendants interfered in contractual relations between the Class and
`
`the public regarding the Licensed Materials by concealing the License Terms.
` Whether GitHub committed Fraud when it promised not to sell or distribute
`
`Licensed Materials outside GitHub in the GitHub Terms of Service and
`
`Privacy Statement.
`
`Unlawful-Competition Conduct
` Whether Defendants passed-off the Licensed Materials as its own creation
`
`and/or Copilot’s creation.
` Whether Defendants were unjustly enriched by the unlawful conduct alleged
`
`herein.
` Whether Defendants Copilot-related conduct constitutes Unfair Competition
`
`under California law.
`
`Privacy Violations
` Whether GitHub violated the Class’s rights under the California Consumer
`
`Privacy Act (“CCPA”), the GitHub Privacy Statement, and/or the California
`
`Constitution by, inter alia, sharing the Class’s sensitive personal information
`
`(or, in the alternative, by not addressing an ongoing data breach of which it is
`
`aware); creating a product that contains personal data GitHub cannot delete,
`
`
`
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`Case 4:22-cv-06823-KAW Document 1 Filed 11/03/22 Page 14 of 56
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`
`
`
`5.
`
`6.
`
`alter, nor share with the applicable Class member; and selling the Class’s
`
`personal data.
` Whether GitHub committed Negligence when it failed to stop a still-ongoing
`
`data breach it was and continues to be aware of.
`
`Injunctive Relief
` Whether this Court should enjoin Defendants from engaging in the unlawful
`
`conduct alleged herein. And what the scope of that injunction would be.
`
`Defenses
` Whether any affirmative defense excuses Defendants’ conduct.
` Whether any statutes of limitation limit Plaintiffs’ and the Class’s potential for
`
`recovery.
` Whether any applicable statutes of limitation should be tolled as a result of
`
`Defendants’ fraudulent concealment of their unlawful conduct.
`
`38.
`
`These and other questions of law and fact are common to the Class and
`
`predominate over any questions affecting the Class members individually.
`E.
`
`Adequacy
`39.
`
`Plaintiffs will fairly and adequately represent the interests of the Class because
`
`they have experienced the same harms as the Class and have no conflicts with any other members
`
`of the Class. Furthermore, Plaintiffs have retained sophisticated and competent counsel (“Class
`
`Counsel”) who are experienced in prosecuting Federal and state class actions throughout the
`
`United States and other complex litigation and have extensive experience advising clients and
`
`litigating intellectual property, competition, contract, and privacy matters.
`F.
`
`Other Class Considerations
`40. Defendants have acted on grounds generally applicable to the Class, thereby
`
`making final injunctive relief appropriate with respect to the Class as a whole.
`41.
`
`This class action is superior to alternatives, if any, for the fair and efficient
`
`adjudication of this controversy. Prosecuting the claims pleaded herein as a class action will
`
`
`
`
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`Case 4:22-cv-06823-KAW Document 1 Filed 11/03/22 Page 15 of 56
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`
`
`
`elim

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