The Argument That Copilot Does Not Comply With Open Source Terms Does Not Stand

ARGUMENT

III. PLAINTIFFS FAIL TO STATE A BREACH-OF-LICENSE CLAIM.

C. Plaintiffs Have Not Plausibly Alleged Breach Based On An Output Theory.

Nor do Plaintiffs plausibly allege breach based on the use of Copilot. Plaintiffs allege that “when providing Output, Copilot does not comply with [open source license] terms.” Compl. ¶ 174. But Plaintiffs have not alleged that Copilot has provided any of their code subject to an attribution requirement, nor plausibly pled that such a suggestion is likely. Nor do they explain how, absent that, there is a breach by any of these Defendants. So even if Defendants knew which provisions of which contracts were at issue, Plaintiffs have not plausibly alleged a breach or plausibly alleged any damages to them—both essential elements of their claim. Low, 900 F. Supp. 2d at 1028; see also Part I, supra.

Plaintiffs allege several examples of Copilot suggestions matching others’ code. See Compl. ¶¶ 66-76; Compl. ¶ 87 (“code from the game Quake III”); Compl. ¶ 88 (unspecified “code that had been released under a license that allowed its use only for free games”); Compl. ¶ 89 (“code belonging to” a “Texas A&M computer-science professor”). None of these alleged licensors appear to be named Plaintiffs (and Plaintiffs would be hard pressed to claim that Microsoft—which owns Quake—is suing itself and its subsidiary in this lawsuit). Plaintiffs cannot save their claims with surmise that “if Licensed Materials have been posted to a GitHub public repository,” they “can be reasonably certain [those materials are] sometimes returned to users as Output.” Compl. ¶ 82. “1% of the time,” Compl. ¶ 90, is hardly likely—and in any event, Plaintiffs fail to allege how even this 1% would breach any license.