OpenAI: Plaintiffs Have Not Pled Removal of CMI - What It All Means

II. ARGUMENT

C. Plaintiffs Fail to Plead a DMCA Claim Under Section 1202(b)

1. Plaintiffs have not pled removal of CMI.

Plaintiffs argue that their DMCA claim cannot be dismissed because they offer more detail in the FAC than their original Complaint. (Opp. at 13.) But Plaintiffs’ newly pled facts confirm the implausibility of Plaintiffs’ DMCA claim.

Plaintiffs do not dispute that, in order to get Copilot to output modified portions of Plaintiffs’ source code, Plaintiffs first had to input very specific and substantial portions of Plaintiffs’ source code into Copilot. (MTD at 11-12 (discussing example of Copilot suggesting five lines of modified code only after Plaintiffs input eight lines of verbatim code).)

Plaintiffs offer no explanation for how Copilot’s suggestion of a modified snippet of Plaintiffs’ code could constitute OpenAI’s removal of CMI from Plaintiffs’ work, when Plaintiffs themselves provided the majority of the work to Copilot as the input without any CMI.

In other words, if there was any CMI on the code in Plaintiffs’ examples in the first place, Plaintiffs (not OpenAI) removed it, because in those examples Plaintiffs provided the majority of the work to Copilot without any CMI.

By Plaintiffs’ logic, Plaintiffs could input into Copilot 99 out of 100 lines of a work’s code without CMI, and if Copilot suggests an output thatresembles the work’s 100th line of code without including CMI, that output of a single line of code would violate the DMCA, despite the fact that it was Plaintiffs who provided the first 99 lines of the work without CMI.

Plaintiffs provide no authority to support their argument that OpenAI must reproduce CMI in such circumstances when Plaintiffs are responsible for providing significant portions of the work as input without CMI. Plaintiffs have thus failed to plead removal of CMI.