30 January 2023CopyrightMuireann Bolger

Microsoft and Open AI hit back in source code dispute

Case centres on emerging field of artificial intelligence known as generative AI | Plaintiffs argue that tech companies violated open-source licences and infringed IP rights.

Microsoft, Microsoft’s GitHub and OpenAI have robustly countered allegations of abuse involving the use of open source code to train their artificial systems.

The companies filed a motion to dismiss the lawsuit at the US District Court for the Northern District of California on Thursday, January 26.

Piracy ‘on an unprecedented scale’

The feud arose in November 2022, when programmer Matthew Butterrick filed a class action lawsuit in San Francisco accusing the companies of improperly monetising open-source code, alleging that GitHub’s Copilot “is doing software piracy on an unprecedented scale”.

He then filed a second class action lawsuit on behalf of two other anonymous developers.

This case centres on the emerging field of AI known as generative AI—systems that can learn concepts and relationships from large bodies of existing knowledge and which then use what they learn to help people create new works.

The complaints alleged that Open AI’s Codex and Microsoft’s Copilot—two “assistive AI-based systems”—generate copied copyrighted material without attribution in some instances.

In doing so, the plaintiffs contend that the defendants violated open-source licences and then infringed their IP rights.

Microsoft bought software development platform GitHub four years ago for $7.5 billion in Microsoft stock. Trained on billions of lines of code, GitHub Copilot turns natural language prompts into coding suggestions across dozens of languages.

OpenAI Codex is an artificial intelligence model developed by OpenAI, and is used to power GitHub Copilot.

No grounds for lawsuit

The tech companies have countered that the plaintiffs have attempted to plead causes of action that don’t actually apply to these tools, leaving the complaints subject to dismissal on multiple grounds.

“Plaintiffs do not allege that their rights associated with code they authored were violated, nor do they provide a single example of their code they claim to be at issue,” said the filing.

The motion added the suit must be dismissed “because the plaintiffs have failed to sufficiently plead that they suffered a recognisable injury.”

The filings come as concerns mount over the use of generative AI and the safeguarding of IP rights.

Earlier this month, three artists announced a class action lawsuit, and Getty Images announced that it had begun legal proceedings in London, both concerning Stability AI’s Stable Diffusion software, which has been accused of using copyrighted images in its training.

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