OpenAI: Their Argument Against the Plaintiffs in the Doe v GitHub Case

II. ARGUMENT

A. Plaintiffs Cannot Allege Any Injury-in-Fact to Establish Article III Standing

2. Does 3 and 4 also lack standing.

Plaintiffs also concede that Does 3 and 4 lack standing by failing to identify any specific instances in which their code was output by Copilot. They instead insist that any pleading deficiencies can be cured “after the Parties have had adequate discovery.” (Opp. at 10.)

But standing must “exist at the time the complaint was filed.” ACLU v. Heller, 471 F.3d 1010, 1015 (9th Cir. 2006) (cleaned up); see also Trump v. N.Y., 141 S. Ct. 530, 534-35 (2020) (“A foundational principle of Article III is that an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.”) (cleaned up).

After Plaintiffs failed to allege any specific facts regarding their code in the original Complaint, the Court gave Plaintiffs another chance to investigate further and amend their pleadings. (See MTD Order.) After a month of additional investigation, they have failed to provide any examples where Copilot outputted code allegedly owned by Does 3 and 4.

This failure suggests they have tried—and have been unable—to prompt Copilot to generate Does 3 and 4’s code. They therefore cannot establish standing.