GitHub Failed to Honor Its Representations in Creating and Operating Copilot

VIII. CLAIMS FOR RELIEF

COUNT IV

FRAUD

Common Law

(Against GitHub)

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

191. GitHub made certain representations to Plaintiffs and the Class to induce them to publicly post their code on GitHub. Specifically, in both its Terms of Service and its Privacy Statement, GitHub promises not to sell Licensed Materials or anything else uploaded to or shared with GitHub. It also promises not to distribute Licensed Materials outside GitHub. As explained above, Copilot operates on an individual’s computer as an extension to their editor as well as on Microsoft’s Azure cloud platform. Neither are part of GitHub. It Outputs in the user’s editor, which is not part of GitHub.

192. Plaintiffs and the Class relied upon those representations in choosing to upload Licensed Materials to GitHub. GitHub has long held itself out as the best place to host opensource code repositories. It has courted the business of users it expects will include Licenses with their code. It facilitates this by allowing users to easily select the name of a license, including the Suggested Licenses, when creating a repository rather than finding the text of the license and adding it themselves. GitHub provides the terms, it can hardly claim to be unaware of what they are or what they mean. If it didn’t understand the requirements of a given Suggested License, it would not have provided it as an option to its users.

193. GitHub failed to honor its representations in creating and operating Copilot. It sells Plaintiffs’ and the Class’s Licensed Materials as part of Copilot. It also distributes them. It does so without following any of the License Terms.

194. As such, GitHub failed to honor its representations in operating Copilot.

195. The conduct of GitHub is causing and, unless enjoined and restrained by this Court, will continue to cause Plaintiffs and the Class great and irreparable injury that cannot fully be compensated or measured in money. Namely, it will continue the proliferation of copies of Licensed Materials divorced from their licenses and identifying information until infringement is so prevalent no amount of enforcement by Plaintiffs and the Class could stop its spread.