Microsoft GitHub Copilot and its business partner OpenAI have been targeted in a proposed class action lawsuit

Microsoft, it's subsidiary GitHub, and its business partner OpenAI have been targeted in a proposed class action lawsuit alleging that the companies' creation of AI-powered coding assistant GitHub Copilot relies on "software piracy on an unprecedented scale." The case is only in its earliest stages but could have a huge effect on the broader world of AI, where companies are making fortunes training software on copyright-protected data.

GitHub Copilot "ignores, violates, and removes the Licenses offered by thousands — possibly millions — of software developers, thereby accomplishing software piracy on an unprecedented scale". That's according to what will be a closely watched class action lawsuit filed on November 3, by programmer Matthew Butterick and the Joseph Saveri Law Firm in the San Francisco federal court. Critically, however, their case does not rest primarily on alleged copyright breaches. The two are suing GitHub, its parent, Microsoft, and its AI technology partner, OpenAI.

GitHub Copilot is effectively an "auto-complete" for coders. It was trained on public GitHub repositories and coded lines on simple prompts. While many coders welcome its ability to avoid the need to write essentially boilerplate code ad nauseum, it has met with some disquiet since its June 2021 launch.

GitHub's then-CEO Nat Friedman noted in 2021: "In general: (1) training ML systems on public data is fair use (2) the output belongs to the operator, just like with a compiler. We expect that IP and AI will be interesting policy discussions around the world in the coming years, and we're eager to participate!"

Other prominent concerns have been that the product (charged at US$10 per month) is "laundering bias through opaque systems" and perpetuating the use of bloated/lazily written code as coders get accustomed to not having to meaningfully think about or critically review the code Copilot is producing for them.

The complaint alleges, "The Defendants stripped Plaintiffs' and the Class's attribution, copyright notice, and license terms from their code in violation of the Licenses and Plaintiffs' and the Class's rights. Defendants used Copilot to distribute the now-anonymized code to Copilot users as if it were created by Copilot."

It adds, "Copilot often simply reproduces code that can be traced back to open-source repositories or licensees. Contrary to and in violation of the Licenses, code reproduced by Copilot never includes attributions to the underlying authors" – the plaintiffs seek a trial by jury and to "seek to recover injunctive relief and damages as a result and consequence of Defendants' unlawful conduct" the complaint shows.

Microsoft and OpenAI are far from alone in scraping copyrighted material from the web to train AI systems for profit. Many text-to-image AI, like the open-source program Stable Diffusion, were created in exactly the same way. The firms behind these programs insist that their use of this data is covered in the US by the fair use doctrine. But legal experts say this is far from settled law and that litigation like Butterick's class action lawsuit could upend the tenuously defined status quo.

To find out more about the motivations and reasoning behind the lawsuit, The Verge spoke to Butterick (MB), Manfredi (TM), and Zirpoli (CZ), who explained why they think we're in the Napster-era of AI and why letting Microsoft use other's code without attribution could kill the open source movement.

In response to a request for comment, GitHub said: "We've been committed to innovating responsibly with Copilot from the start, and will continue to evolve the product to best serve developers across the globe." OpenAI and Microsoft had not replied to similar requests at the time of publication.