A new complaint against Microsoft, GitHub, and OpenAI alleges that GitHub avoided some copyright allegations by tweaking its Copilot programming assistant.
Specifically, in response to public criticism of Copilot, GitHub launched a user-adjustable Copilot filter in July 2022 called "Suggestions matching public code". When the filter is enabled, GitHub Copilot checks code suggestions and their surrounding code against public code on GitHub to about 150 characters. If there is a match or close match, the suggestion will not be provided to the user.
But the plaintiffs argue that the filter is essentially worthless because it only checks for exact matches, but a slight modification would make it undetectable. GitHub attempts to evade copyright and license violations by altering Copilot's output so that the content does not appear to be an exact copy .
"In GitHub's hands, the propensity for minor superficial changes in Copilot output is a feature, not a bug. This means that GitHub can provide unlimited modified copies of licensed material to Copilot customers without triggering Copilot's verbatim-code filtering ... Copilot is an ingenious method of software piracy.”
The lawsuit, originally filed last November by four unidentified ("J. Doe") plaintiffs, alleges that Copilot trained on publicly released code and used others' code as its own in violation of copyright laws and software licensing requirements. The code is displayed. At that time, Microsoft, GitHub, and OpenAI tried to dismiss the case, but ended up avoiding only a few claims. The judge left the main copyright and licensing issues intact and allowed plaintiffs to add more evidentiary details.
The amended complaint now covers eight counts, retaining charges for violation of the Digital Millennium Copyright Act (US copyright law), breach of contract (violation of an open source license), unfair enrichment, and unfair competition. And several charges were added: breach of contract (selling licensed material in violation of GitHub's policies), willfully interfering with a future economic relationship, and negligently interfering with a future economic relationship.
The amended complaint also adds a plaintiff who alleges that Copilot copied his code and provided samples of his code. And the plaintiff's code samples were edited to prevent identification. The judge overseeing the case has also allowed the plaintiffs to remain anonymous in court filings to protect them from threats.
In response to these allegations, a Microsoft spokesperson firmly denied, and responded , "We firmly believe that artificial intelligence will change the way the world builds software, thereby improving productivity; most importantly, making developers happier. We believe that Copilot complies with In accordance with applicable laws, we have committed from the beginning to responsibly innovating with Copilot. We will continue to invest in and champion the AI-driven developer experience of the future."
OpenAI did not respond to a request for comment.