GitHub Does Not Prevent Computers From Reading and Learning from Code Deposited on its Website

ALLEGATIONS OF THE OPERATIVE COMPLAINT

B. GitHub Offers Copilot, A Code Completion Tool Built On Codex.

GitHub Copilot is a programming assistant. Compl. at 8 n.4, ¶¶ 82-83. It “uses the OpenAI Codex to suggest code and entire functions in real-time” to software developers. Compl. ¶ 47. To use Copilot, a GitHub user installs it “as an extension to various code editors, including Microsoft’s Visual Studio and VS Code.” Compl. ¶ 67. “As the user types [code] into the editor,” Copilot treats the user’s input as a prompt, generating suggestions for code that may be appropriate for the developer’s purposes. Compl. ¶ 67. Copilot is a subscription tool available to GitHub users for $10 per month or $100 per year. Compl. ¶ 8.

The version of Codex that powers Copilot was trained on billions of lines of code that GitHub users stored in public GitHub repositories. See Compl. ¶ 143. When GitHub users put their code on GitHub, they choose whether to make the code repositories private or public. Compl. ¶ 119. Users who set their repositories “to be viewed publicly … grant each User of GitHub a nonexclusive, worldwide license to use, display, and perform Your Content through the GitHub Service and to reproduce Your Content solely on GitHub as permitted through GitHub’s functionality.” Compl. Ex. 1 at 28 (GitHub Terms of Service (“TOS”) at 7). Every user agrees to GitHub’s TOS, which include a “License Grant” to GitHub to “store, archive, parse, and display … and make incidental copies” as well as “parse it into a search index or otherwise analyze it” and “share” the content in public repositories with other users. Compl. Ex. 1 at 27-28 (GitHub TOS at 6-7). And users can also select from a range of preset open source licenses to apply to the code published in their various GitHub repositories, apply their own individual licenses, or select none at all. Compl. ¶ 34 n.4 & Appx. A.

Any GitHub user thus appreciates that code placed in a public repository is genuinely public. Anyone is free to examine, learn from, and understand that code, as well as repurpose it in various ways. And, consistent with this open source ethic, neither GitHub’s TOS nor any of the common open source licenses prohibit either humans or computers from reading and learning from publicly available code. See Compl. ¶ 34 n.4 & Appx. A.