GitHub (Allegedly) Financially Hurt Open-Source Licences

VIII. CLAIMS FOR RELIEF

COUNT 4 INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC RELATIONS Common Law (Against All Defendants)

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

242. Open-source software programmers invite other programmers to view, use and modify their code and to make changes and improvements to it subject to requirements in certain licenses. When a programmer uses an open-source software, a contract is formed based on the terms of the particular open-source license.

243. Although no money changes hands in open-source licensing, courts have long recognized that there are substantial benefits, including economic benefits, to the creation and distribution of open-source code subject to these open-source licenses. For example, program creators can generate market share for their programs, increase their reputation both nationally and internationally, and discover new improvements to their open-source project. These benefits, however, rely on the proliferation of the licenses and obligations that come with the license along with the code that is subject to that license.

244. GitHub was founded by open-source programmers and has long held itself out as a gathering point for the global open-source community. For open-source programmers, including Plaintiffs and the Class, part of the benefit of becoming a GitHub customer and sharing code there was to make it easier for members of the global open-source community to discover their work, and thereby accrue a user community of contributors and collaborators specific to their open-source projects.

245. User communities create the probability of future economic benefit in a number of ways. Users can provide bug reports, saving authors from having to discover every bug themselves. Users can provide new code that fixes bugs or adds features, saving authors from having to write every line of code themselves. Users sometimes arrange financial contracts with authors for extra licensing rights, or custom features, or technical support. The exposure from a user community can also bring collateral benefits, like job offers or research grants.

246. Plaintiffs and Class members chose to become GitHub customers specifically to avail themselves of these benefits of GitHub and 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 relationships.

247. In other words, Plaintiffs and Class members posted their code on GitHub with an expectation that other programmers would use, modify, copy or otherwise iterate on their posted code subject to the terms of the open-source licenses the code was published subject to.

248. GitHub’s status as a focal point of the global open-source community was one of the main reasons Microsoft wanted to own it. At the time it acquired GitHub, Microsoft pledged to uphold these virtues. But Defendants’ project of harvesting mass quantities of public opensource code on GitHub for training Codex and Copilot represented an inversion of these priorities. Codex and Copilot essentially act as walled gardens that provide an alternative interface to the same open-source code, a process sometimes called “vendorization”.

249. By failing to provide information about the Suggested Licenses attached to the Licensed Materials, Defendants intentionally prevented Copilot users from becoming part of the user communities that would ordinarily accrete around the open-source projects of Plaintiffs and the Class. Instead, Defendants reserved those benefits for themselves.

250. Defendants knew that they were interfering with Plaintiffs and Class members’ prospective open-source relationships because Defendants knew that Codex and Copilot were emitting code subject to open-source licenses without the licenses attached.

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

252. Plaintiffs have been deprived of the economic benefits of open-source licenses. Plaintiffs and the Class have suffered monetary, reputational, and other damages as a result of Defendants’ conduct.

253. 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.