Programmers' Arguments in the GitHub Lawsuit Are 'Dead on Arrival'

ARGUMENT

IV. PLAINTIFFS’ TORT AND UCL CLAIMS FAIL.

D. Plaintiffs Lack Standing To Bring A UCL Unlawful Competition Claim And Fail To State A Claim.

Plaintiffs duplicate their DMCA, tort, passing off, and privacy claims as purported violations by GitHub of California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. (Count VII). This is dead on arrival. The “UCL’s standing requirements” are even “more stringent than the federal standing requirements.” Kwikset Corp. v. Super. Ct., 51 Cal. 4th 310, 324 (2011). A private plaintiff may only sue under the UCL if it has “suffered injury in fact and has lost money or property.” Cal. Bus. & Prof. Code § 17204. Standing for the UCL is “substantially narrower than federal standing under Article III.” Kwikset, 51 Cal. 4th at 324; see also McGee, 982 F.3d at 705 n.3 (same). Here, because Plaintiffs lack Article III standing, see Part I, supra, they certainly lack UCL standing. Plaintiffs do not plausibly allege the required “lost money or property.” Cal. Bus. & Prof. Code § 17204. They assert that “Plaintiffs and the Class have suffered monetary damages as a result of GitHub’s and OpenAI’s conduct.” Compl. ¶ 213. But Plaintiffs do not allege any factual theory of how they suffered monetary loss as a result of the training of Copilot or its suggestions, let alone any specific allegations supporting such a theory. Their “[t]hreadbare recital[] of the elements of [the] cause of action, supported by mere conclusory statements, do[es] not suffice.” Iqbal, 556 U.S. at 678.

In all events, Plaintiffs’ UCL claim fails because it is dependent upon otherwise defective DMCA, tort, passing off, and privacy violations. “[T]o state a claim under the unlawful prong of the UCL, a plaintiff must sufficiently plead a predicate violation.” Lopez v. Bank of Am., N.A., 505 F. Supp. 3d 961, 976 (N.D. Cal. 2020) (quotation marks omitted). Plaintiffs did not.