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Update in Copilot Copyright Claim may affect Future Challenges of Artificial Intelligence

Written by: Carly O. Bastedo

Users of Windows products are by now familiar with the small rainbow icon that appeared in the right corner of their taskbars in late September of last year. This new application, named Copilot, has been marketed by Microsoft as a virtual artificial intelligence (AI) assistant who can help users by summarizing emails, writing papers, and even writing code for the price of $30 dollars a month. Its ability to write code is what drew a lawsuit against its pilot program in 2022, marking the first AI case in the US to be brought on by programmers. The U.S. District Court for the Northern District of California decision to dismiss a large portion of the case has just been moved up to the Ninth Circuit Court of Appeals for an interlocutory appeal on Sep. 27th, 2024.

The case, Doe v. GitHub, Inc., was brought on by a group of anonymous programmers against OpenAI, the generative AI company that powers Copilot, and GitHub, the code development platform owned by Microsoft that created Copilot. The programmers alleged a violation of the Digital Millennium Copyright Act. Both OpenAI and GitHub are open-source platforms, which means their source code is available to the public for free use and modification. The programmers are alleging that the code that they uploaded to GitHub with the licensing agreement that any use of it must be attributed to them is being replicated by Copilot for its paying users with no recognition of the programmers. If the allegations of the programmers are true, the use of the code without its copyright management information, which in this case is the attribution and licensing notes, would be a violation of the Digital Millennium Copyright Act (DMCA).

In June of 2024, the portion of the case regarding the DMCA violation was dismissed by the District Court, on the grounds that the code being output by Copilot, while similar to the programmer’s code, was not an exact replication. The judge held that for AI generated code to be a DMCA violation it must be identical to the copyrighted work. This decision was quickly followed by a motion on the part of the programmers for an interlocutory appeal, in which the Court of Appeals would review the decision on the basis 28 U.S.C. § 1292(b) and make a ruling on that specific issue before the case continues in the District Court.

The decision that the Court of Appeals makes on the issue of the DMCA imposes an identicality requirement, which regardless on which way they hold, will have a massive impact not only on this copyright case, but on cases regarding copyright and generative AI going forward. The District Courts that make up the Ninth Circuit are currently split on the issue, so these decisions will create precedent that will make further decisions more uniform within the Ninth Circuit. This will further help petitioners know how the court is likely to rule, which allows them to weigh the merits of their case more accurately. If the Court of Appeals finds that an identicality requirement is imposed by DMCA, future creators will have a much harder time seeking relief when AI models that are trained on their work regurgitate their work almost verbatim. On the other hand, if the Court of Appeals does not find an identicality requirement imposed by DMCA, the decision could potentially open the door for more creators to challenge the use of their work by AI and could lead to AI models being redeveloped without attribution abilities for the work it creates.

As the technology and usage of generative AI continues to grow, it is implicating many areas of the law, but arguably none as much as copyright law. The United States Copyright Office is currently releasing in stages their report on the issues that AI poses in copyright law. The first part of the report, focusing on Digital Replicas, was on July 31st, 2024, with more expected to follow soon. As the legal profession continues to grapple with the use of AI, the decisions made in Doe v. GitHub and other earlier artificial intelligence cases may lay the groundwork for the future of copyright law in the digital landscape.

Sources:

Copyright and Artificial Intelligence, U.S. Copyright Office (2024).

Doe v. Github, Inc., No. 22-cv-06823-JST (N.D. Cal. 2024).

GitHub: Let’s build from here · GitHub (last visited Oct. 3, 2024).

OpenAI (last visited Oct. 3, 2024).

Isaiah Portiz, OpenAI Faces Early Appeal in First AI Copyright Suit From Coders, Bloomberg Law (Sep. 30, 2024, 12:36 PM).

Jared Spataro, Announcing Copilot for Microsoft 365 general availability and Microsoft 365 Chat, Microsoft (Sep. 21, 2023).

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