Coders Who Brought GitHub Lawsuit Fail to Demonstrate How Copilot Harmed Them

ARGUMENT

I. PLAINTIFFS LACK ARTICLE III STANDING AND THEREFORE SUBJECT MATTER JURISDICTION BECAUSE THEY HAVE NOT ALLEGED ACTUAL OR THREATENED INJURY.

GitHub and Microsoft move to dismiss under Rule 12(b)(1) because Plaintiffs fail to plead the actual or threatened injury necessary for Article III standing. If a plaintiff lacks Article III standing, the federal court lacks subject matter jurisdiction and the suit must be dismissed. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1140 (9th Cir. 2003). “‘[A]t the pleading stage, the plaintiff must clearly allege facts demonstrating each element of standing.’” McGee v. S-L Snacks Nat’l, 982 F.3d 700, 705 (9th Cir. 2020) (cleaned up). One such element “plaintiffs must demonstrate [is] that they suffered a concrete harm.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2200 (2021). This “injury in fact” requirement demands “more than an injury to a cognizable interest. It requires that the part[ies] seeking review be [themselves] among the injured.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992). A plaintiff must therefore allege an injury “that affects the plaintiff in a personal and individual way.” McGee, 982 F.3d at 705 (cleaned up). And it must do so “for each claim … and for each form of relief that is sought.” Davis v. Federal Election Comm’n, 554 U.S. 724, 734 (2008) (cleaned up).

The two anonymous Plaintiffs in this action, J. Does 3 and 4, do not meet this standard as to either of the Complaint’s inconsistent theories of harm. The first theory is that Plaintiffs should have been identified in connection with their code (lack of attribution), and the second is that they should not have been identified (privacy). Yet the Complaint lacks allegations sufficient to demonstrate that Plaintiffs were or will be injured in either respect.