Copilot is a 'Neutral Technology' That Does Not Satisfy the Standards of Copyright Infringement

ARGUMENT

II. PLAINTIFFS FAIL TO STATE A DMCA CLAIM.

Apart from failing to establish standing, Plaintiffs also do not state a claim. To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain factual matter that, when accepted as true, states a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If a claim lacks a cognizable legal theory or lacks sufficient facts to plausibly support a cognizable legal theory, dismissal is warranted. Thunder Power New Energy Vehicle Dev. Co. v. Byton N. Am. Corp., 340 F. Supp. 3d 922, 925 (N.D. Cal. 2018).

Count I alleges violations of 17 U.S.C. § 1202, a part of the Digital Millennium Copyright Act (“DMCA”). The DMCA was enacted to balance the rights of users with those of copyright owners in light of new technologies. See generally United States v. Elcom Ltd., 203 F. Supp. 2d 1111 (N.D. Cal. 2002). Section 1202 is directed to the potential for bad acts that facilitate mass infringement in the electronic age. It protects the “[i]ntegrity of copyright management information” (“CMI”)—that is, certain categories of “information conveyed in connection with copies … of a work,” like titles or authorship information. 17 U.S.C. § 1202(c). Section 1202 proscribes the provision or distribution of false CMI, intentional removal of CMI, alteration of CMI, and distribution of works with removed or altered CMI. Consistent with its focus on thwarting piracy, each subsection contains a double-scienter requirement. See id. A defendant is liable only if it had both the requisite scienter with respect to the violative conduct (i.e., provision of false CMI, removal of CMI, etc.) and some degree of knowledge that this conduct would “induce, enable, facilitate, or conceal infringement.” Id. § 1202(a)-(b). Neutral technology like Copilot cannot satisfy that standard. Part A, infra. Even were that possible as a theoretical legal matter, Count I lumps far too much together to provide each of GitHub and Microsoft fair notice of who is alleged to have done what to violate § 1202. Part B, infra. Plaintiffs’ purported claims under each subsection fail for multiple additional reasons. Sections C-D, infra.