GitHub Accused of Negligent Interference

VIII. CLAIMS FOR RELIEF

COUNT 5 NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC RELATIONS Common Law (Against All Defendants)

254. Plaintiffs and the Class hereby repeat and incorporate by reference each preceding and succeeding paragraph as though fully set forth herein.

255. As described in Paragraphs 242 through 247 herein, Plaintiffs and Class members post their code subject to open-source licenses in order to enjoy the economic benefits associated with the distribution of open-source software code.

256. Defendants knew or should have known that Plaintiffs and the Class chose to become GitHub customers specifically to optimize the likelihood of accruing communities of other GitHub customers for their own projects, and to benefit from the future economic benefits likely to arise from those open-source licensing relationships.

257. Defendants knew or should have known that by scraping the Licensed Materials of Plaintiffs and the Class and using it to create competing products (namely, Codex and Copilot) that did not adhere to the obligations of the Suggested Licenses, that Defendants would disrupt the formation and growth of these user communities, and also disrupt the economic benefits that would ordinarily accrue to Plaintiffs and the Class from the growth of those user communities.

258. Defendants’ conduct falls far outside the boundaries of fair competition because Defendants have leveraged GitHub’s status as a gathering point for the global open-source community to undermine that very community, including Plaintiffs and the Class. Defendants have leveraged the permissive nature of the Suggested Licenses to undermine the Licensed Materials, thereby harming Plaintiffs and the Class.

259. Defendants’ conduct could not have been performed without a direct effect on Plaintiffs’ economic interests as Plaintiffs’ open-source code was hosted on GitHub and used to train Codex and Copilot.

260. Plaintiffs uploaded their open-source software code on GitHub with the reasonable expectation that other open-source programmers would use, modify, copy or otherwise iterate on their code.

261. The adverse effect on Plaintiffs was foreseeable as Defendants are aware of the obligations that carry with open-source licenses. Further, Defendants knew that Codex and Copilot copied code used for training the models without the associated licenses attached and without any of the necessary obligations that carry with the licenses, e.g., attribution.

262. Even after Defendants knew that Codex and Copilot would reproduce code verbatim, including in some instances, with the incorrect licenses or license text, Defendants continued to operate Codex and Copilot. In other words, Defendants continued to operate Codex and Copilot after they should have known that Codex and Copilot’s operation were depriving Plaintiffs of the economic benefits of open-source distribution.

263. Defendants have therefore negligently and wrongfully interfered with the prospective business interests and expectations of Plaintiffs and the Class.

264. Plaintiffs and the Class have suffered monetary, reputational, and other damages as a result of Defendants’ conduct.

265. Unless enjoined and restrained by this Court, Defendants’ conduct will continue to cause Plaintiffs and the Class great and irreparable injury that cannot fully be compensated or measured in money.

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This court case 4:22-cv-06823-JST retrieved on August 26, 2023, from Storage Courtlistener is part of the public domain. The court-created documents are works of the federal government, and under copyright law, are automatically placed in the public domain and may be shared without legal restriction.