The OpenAI Lawsuit Should Be Dismissed Because Code Can't Be Considered Tangible Goods

MEMORANDUM OF POINTS AND AUTHORITIES

IV. ARGUMENT

C. Plaintiffs’ Claims Fail for Reasons Specific to Each Claim.

4. Plaintiffs Fail to Allege a False Designation of Origin Claim.

A claim for false designation of origin must relate to the origin of tangible goods, not the authorship of an intangible work like computer code. 15 U.S.C. § 1125(a)(1)(A); Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 37 (2003) (concluding that the phrase “origin of goods…refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept or communication embedded in those goods”); Agence France Presse v. Morel, 769 F. Supp. 2d 295, 307 (S.D.N.Y. 2011) (holding that Dastar forecloses Lanham Act claims relating to authorship).

To hold that authorship is actionable under the Lanham Act would “provide authors of creative works with perpetual protection under the Lanham Act that they did not have under the Copyright Act.” Oppenheimer v. Allvoices, Inc., No. C 14-00499 LB, 2014 WL 2604033, at *11 n.10 (N.D. Cal. June 10, 2014).

Plaintiffs’ claim is precisely the kind of false designation of origin claim foreclosed by these precedents. The complaint alleges that “GitHub and OpenAI” have passed off the code contained in Copilot’s output as originating from Copilot, GitHub, and/or OpenAI, thereby violating the Lanham Act. (Compl. ¶¶ 201, 212.) Plaintiffs also claim that “Codex does not identify the owner of the copyright to [its] Output” because “it has not been trained to provide Attribution” and that “[a]s with Codex, Copilot does not provide the end user any attribution of the original author of the code, nor anything about their license requirements.” (Id. ¶¶ 56, 77.)

Even taking these allegations as true, the complaint does not give rise to a Lanham Act claim because the alleged misrepresentation relates to authorship.