Programmers Failed to Identify What Contract GitHub Breached in the Copilot Lawsuit

ARGUMENT

III. PLAINTIFFS FAIL TO STATE A BREACH-OF-LICENSE CLAIM.

A. Plaintiffs Fail To Specify The Contract Provisions Allegedly Breached.

Plaintiffs’ breach of contract claim fails at the outset because the Complaint does not identify the contract(s) or provision(s) that each Defendant allegedly breached. See Low, 990 F. Supp. 2d at 1028. One would ordinarily see a contract claim alleging “plaintiff and defendant entered into X contract and then defendant violated paragraph Y of that contract by doing Z.” None of that exists here. Instead, all Plaintiffs assert is that “Defendants [lumped together] violated the [unspecified] Licenses governing use of the [unidentified] Licensed Materials by using them to train Copilot.” Compl. at 10. There is no identification of the who and how of the contractual relationships, no identification of the object(s) of any alleged contract, nor identification of how any particular act by any particular Defendant violated any particular contractual provision. Plaintiffs do not allege how training Copilot on public GitHub repositories breaches any provision of any contract. This is not just procedural theater. It is important because none of the open source licenses attached to the Complaint appear to prohibit such activity in any way. On the contrary, the principles embodied in customary open source licenses contemplate broad public rights to inspect, learn from, and build upon code.

Rule 8 requires at least a minimal effort in a contract claim to explain the breach. Count II is defective in this respect, and the failure to offer any explanation is particularly egregious with respect to Defendant Microsoft, which is not alleged to have done anything with Plaintiffs’ “Licensed Materials.” Because Plaintiffs fail to plead the “specific provisions in the contract … the defendant is said to have breached,” Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1117 (N.D. Cal. 2011), their claims should be dismissed.