This case was last updated from U.S. District Courts on 09/24/2023 at 11:17:57 (UTC).

DOE 1 et al v. GitHub, Inc. et al

Case Summary

On November 3, 2022, Doe 1 and Doe 2 (collectively, “Plaintiffs”), on behalf of themselves and all others similarly situated, represented by Joseph R. Saveri, Cadio Zirpoli, and Travis Manfredi of Joseph Saveri Law Firm, LLP, filed a class-action lawsuit against GitHub, Inc., Microsoft Corporation, OpenAI, Inc., OpenAI L.P., OpenAI GP, L.L.C., OpenAI Startup Fund GP I, L.L.C., OpenAI Startup Fund I, L.P., and OpenAI Startup Fund Management, LLC (collectively, “Defendants”), seeking injunctive relief and damages for alleged breach of contract, as well as alleged violations of the Digital Millennium Copyright Act and the California Consumer Privacy Act (the “CCPA”). This case was filed in the U.S. District Court for the Northern District of California with Judge Kandis A. Westmore presiding. 

Plaintiffs brought this action for damages and injunctive relief on behalf of themselves and all others similarly situated as a class action pursuant to Rules 23(a), 23(b)(2), and 23(b)(3) of the Federal Rules of Civil Procedure. 

According to the complaint, “Plaintiffs and the Class are owners of copyright interests in materials made available publicly on GitHub that are subject to various licenses containing conditions for use of those works (the ‘Licensed Materials’). All the licenses at issue here (the ‘Licenses’) contain certain common terms (the ‘License Terms’).”

Plaintiffs stated, “‘Artificial Intelligence’ is referred to herein as ‘AI’. AI is defined for the purposes of this Complaint as a computer program that algorithmically simulates human reasoning or inference, often using statistical methods. Machine Learning (‘ML’) is a subset of AI in which the behavior of the program is derived from studying a corpus of material called training data.”

Plaintiffs claimed, “GitHub is a company founded in 2008 by a team of open-source enthusiasts. At the time, GitHub’s stated goal was to support open-source development, especially by hosting open-source source code on the website github.com. Over the next 10 years, GitHub, based on these representations succeeded wildly, attracting nearly 25 million developers.”

Plaintiffs then claimed that “[d]evelopers published Licensed Materials on GitHub pursuant to written Licenses. In particular, the most popular ones share a common term: use of the Licensed Materials requires some form of attribution, usually by, among other things, including a copy of the license along with the name and copyright notice of the original author.”

Plaintiffs alleged, “On October 26, 2018, Microsoft acquired GitHub for $7.5 billion. Though some members of the open-source community were skeptical of this union, Microsoft repeated one mantra throughout ‘Microsoft Loves Open Source.’ For the first few years, Microsoft’s representations seemed credible.”

Plaintiffs then alleged, “Microsoft invested $1 billion in OpenAI LP in July 2019 at a $20 billion valuation. In 2020, Microsoft became exclusive licensee of OpenAI’s GPT-3 language model – despite OpenAI’s continued claims its products are meant to benefit ‘humanity’ at large. In 2021, Microsoft began offering GPT-3 through its Azure cloud-computing platform. On October 20, 2022, it was reported that OpenAI ‘is in advanced talks to raise more funding from Microsoft’ at that same $20 billion valuation.”

Plaintiffs also alleged, “GitHub and OpenAI have offered shifting accounts of the source and amount of the code or other data used to train and operate Copilot. They have also offered shifting justifications for why a commercial AI product like Copilot should be exempt from these license requirements, often citing ‘fair use’.”

Plaintiffs presented twelve claims for relief, including for the alleged violation of the Digital Millennium Copyright Act, the California Consumer Privacy Act, breach of contract, tortious interference in a contractual relationship, fraud, unjust enrichment, unfair competition, negligence, civil conspiracy, and declaratory relief. 

In the prayer for relief, plaintiffs requested a judgment granting injunctive relief. Plaintiffs also requested an award of statutory and punitive damages. 

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Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    4:22-CV-06823

  • Filing Date:

    11/03/2022

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

Judge Details

Presiding Judge

Jon S. Tigar

 

Party Details

Plaintiffs

J. DOE 1

J. DOE 2

J. Doe 3

J. Doe 4

J. Doe 5

Defendants

GitHub, Inc.

Microsoft Corporation

OPENAI, INC.

OPENAI, L.P.

OPENAI GP, L.L.C.

OPENAI STARTUP FUND GP I, L.L.C.

OPENAI STARTUP FUND I, L.P.

OPENAI STARTUP FUND MANAGEMENT, LLC

OpenAI OpCo, L.L.C.

Attorney/Law Firm Details

Plaintiff Attorneys

Matthew Butterick

Cadio R. Zirpoli

Christopher Kar-Lun Young

Elissa Amlin Buchanan

Louis Andrew Kessler

Steven Noel Williams

Travis Luke Manfredi

Joseph R. Saveri

Defendant Attorneys

Alyssa M. Caridis

William Wayne Oxley

Annette L. Hurst

Daniel Denny Justice

Rose S Lee

Joseph Charles Gratz

Melody Ellen Wong

Alexandra Marie Ward

Michael A. Jacobs

Tiffany Cheung

Allyson Roz Bennett

 

Court Documents

#157

(#157) ORDER by Judge Jon S. Tigar granting (152) Administrative Motion to File Under Seal in case 4:22-cv-06823-JST. (mll, COURT STAFF) (Filed on 9/19/2023) (Entered: 09/19/2023)

#156

(#156) ORDER by Judge Jon S. Tigar granting (151) Motion to Remove Incorrectly Filed Document in case 4:22-cv-06823-JST. (mll, COURT STAFF) (Filed on 9/19/2023) (Entered: 09/19/2023)

#154

(#154) CERTIFICATE OF SERVICE by J. DOE 1, J. DOE 2, J. Doe 3, J. Doe 4, J. Doe 5 re #152 Joint Case Management Statement Filed Under Seal (Manfredi, Travis) (Filed on 9/13/2023) Modified on 9/13/2023 linking entry to #152 (dhm, COURT STAFF). (Entered: 09/13/2023)

#153

(#153) JOINT CASE MANAGEMENT STATEMENT filed by J. DOE 1, J. DOE 2, J. Doe 3, J. Doe 4, J. Doe 5. (Manfredi, Travis) (Filed on 9/12/2023) (Entered: 09/12/2023)

152 #3

*Restricted*

152 #2

Proposed Order

152 #1

Declaration of Travis Manfredi

#152

(#152) Administrative Motion to File Under Seal filed by J. DOE 1, J. DOE 2, J. Doe 3, J. Doe 4, J. Doe 5. (Attachments: #1 Declaration of Travis Manfredi, #2 Proposed Order, #3 Joint Case Management Statement)(Manfredi, Travis) (Filed on 9/12/2023) (Entered: 09/12/2023)

151 #1

Proposed Order

#7

(#7) SUMMONS Returned Executed by J. DOE 2, J. DOE 1. GitHub, Inc. served on 11/7/2022, answer due 11/28/2022. (Saveri, Joseph) (Filed on 11/14/2022) (Entered: 11/14/2022)

#6

(#6) Summons Issued as to GitHub, Inc., Microsoft Corporation, OPENAI GP, L.L.C., OPENAI STARTUP FUND GP I, L.L.C., OPENAI STARTUP FUND I, L.P., OPENAI STARTUP FUND MANAGEMENT, LLC, OPENAI, INC., OPENAI, L.P. (cjl, COURT STAFF) (Filed on 11/4/2022) (Entered: 11/04/2022)

#5

(#5) Proposed Summons. (Saveri, Joseph) (Filed on 11/4/2022) (Entered: 11/04/2022)

#4

(#4) Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 1/31/2023. Initial Case Management Conference set for 2/7/2023 01:30 PM in Oakland, - To be determined. (cjl, COURT STAFF) (Filed on 11/4/2022) (Entered: 11/04/2022)

#2

#Electronic filing error. Error on PDF attached. [err201] First page overflows onto second page. This filing will not be processed by the clerks office. Please re-file in its en tirety Re: #2 Proposed Summons filed by J. DOE 1, J. DOE 2. (cjl, COURT STAFF) (Filed on 11/4/2022) (Entered: 11/04/2022)

1 #3

Civil Cover Sheet

1 #2

Exhibit 1 - Terms of Service, Privacy Statement

1 #1

Appendix A - Full Text of Licenses

1 #1

Main Document

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Docket Entries

  • 09/19/2023
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  • Docket(#157) ORDER by Judge Jon S. Tigar granting (152) Administrative Motion to File Under Seal in case 4:22-cv-06823-JST. (mll, COURT STAFF) (Filed on 9/19/2023) (Entered: 09/19/2023)

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  • 09/19/2023
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  • Docket(#156) ORDER by Judge Jon S. Tigar granting (151) Motion to Remove Incorrectly Filed Document in case 4:22-cv-06823-JST. (mll, COURT STAFF) (Filed on 9/19/2023) (Entered: 09/19/2023)

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  • 09/15/2023

  • DocketSet Deadlines/Hearings: Case Management Statement due by 11/10/2023. (jlg, COURT STAFF) (Filed on 9/15/2023) (Entered: 09/17/2023)

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  • 09/15/2023

  • Docket(#155) Minute Entry for proceedings held before Judge Jon S. Tigar: Further Case Management Conference held on 9/15/2023.ESI Protocol Deadline 10/27/2023. Expert Discovery Stipulation Deadline 10/27/2023. Joint Case Management Statement due 11/10/2023. Further Case Management Conference set for 11/17/2023 at 1:30 PM in Oakland, - Videoconference Only. Total Time in Court: 32 minutes. Court Reporter: Not Reported. Plaintiff Attorney: Joseph Saveri. Defendant Attorney: Annette Hurst, Joseph Gratz, Micahel Jacobs. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jlg, COURT STAFF) (Date Filed: 9/15/2023) (Entered: 09/17/2023)

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  • 09/13/2023
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  • Docket(#154) CERTIFICATE OF SERVICE by J. DOE 1, J. DOE 2, J. Doe 3, J. Doe 4, J. Doe 5 re #152 Joint Case Management Statement Filed Under Seal (Manfredi, Travis) (Filed on 9/13/2023) Modified on 9/13/2023 linking entry to #152 (dhm, COURT STAFF). (Entered: 09/13/2023)

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  • 09/12/2023
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  • Docket(#153) JOINT CASE MANAGEMENT STATEMENT filed by J. DOE 1, J. DOE 2, J. Doe 3, J. Doe 4, J. Doe 5. (Manfredi, Travis) (Filed on 9/12/2023) (Entered: 09/12/2023)

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  • 09/12/2023
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  • Docket(#152) Administrative Motion to File Under Seal filed by J. DOE 1, J. DOE 2, J. Doe 3, J. Doe 4, J. Doe 5. (Attachments: #1 Declaration of Travis Manfredi, #2 Proposed Order, #3 Joint Case Management Statement)(Manfredi, Travis) (Filed on 9/12/2023) (Entered: 09/12/2023)

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  • 09/12/2023
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  • Docket(#151) MOTION to Remove Incorrectly Filed Document filed by J. DOE 1, J. DOE 2, J. Doe 3, J. Doe 4, J. Doe 5. (Attachments: #1 Proposed Order)(Manfredi, Travis) (Filed on 9/12/2023) (Entered: 09/12/2023)

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  • 09/08/2023
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  • Docket#Electronic filing error. Incorrect event used. [err101]Corrected by Clerk's Office. No further action is necessary. Re: #149 Case Management Statement filed by J. Doe 5, J. DOE 1, J. Doe 4, J. Doe 3, J. DOE 2 (dhm, COURT STAFF) (Filed on 9/8/2023) (Entered: 09/08/2023)

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  • 09/08/2023
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  • Docket(#150) Rule 7.1 Disclosures by OpenAI, L.P. - Certification of Interested Entities or Persons and Corporate Disclosure Statement (Bennett, Allyson) (Filed on 9/8/2023) (Entered: 09/08/2023)

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142 More Docket Entries
  • 11/14/2022
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  • Docket(#9) SUMMONS Returned Executed by J. DOE 2, J. DOE 1. OPENAI STARTUP FUND GP I, L.L.C. served on 11/7/2022, answer due 11/28/2022. (Saveri, Joseph) (Filed on 11/14/2022) (Entered: 11/14/2022)

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  • 11/14/2022
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  • Docket(#8) SUMMONS Returned Executed by J. DOE 2, J. DOE 1. Microsoft Corporation served on 11/7/2022, answer due 11/28/2022. (Saveri, Joseph) (Filed on 11/14/2022) (Entered: 11/14/2022)

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  • 11/14/2022
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  • Docket(#7) SUMMONS Returned Executed by J. DOE 2, J. DOE 1. GitHub, Inc. served on 11/7/2022, answer due 11/28/2022. (Saveri, Joseph) (Filed on 11/14/2022) (Entered: 11/14/2022)

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  • 11/04/2022
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  • Docket(#6) Summons Issued as to GitHub, Inc., Microsoft Corporation, OPENAI GP, L.L.C., OPENAI STARTUP FUND GP I, L.L.C., OPENAI STARTUP FUND I, L.P., OPENAI STARTUP FUND MANAGEMENT, LLC, OPENAI, INC., OPENAI, L.P. (cjl, COURT STAFF) (Filed on 11/4/2022) (Entered: 11/04/2022)

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  • 11/04/2022
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  • Docket(#5) Proposed Summons. (Saveri, Joseph) (Filed on 11/4/2022) (Entered: 11/04/2022)

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  • 11/04/2022
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  • Docket(#4) Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 1/31/2023. Initial Case Management Conference set for 2/7/2023 01:30 PM in Oakland, - To be determined. (cjl, COURT STAFF) (Filed on 11/4/2022) (Entered: 11/04/2022)

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  • 11/04/2022
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  • Docket#Electronic filing error. Error on PDF attached. [err201] First page overflows onto second page. This filing will not be processed by the clerks office. Please re-file in its en tirety Re: #2 Proposed Summons filed by J. DOE 1, J. DOE 2. (cjl, COURT STAFF) (Filed on 11/4/2022) (Entered: 11/04/2022)

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  • 11/03/2022

  • Docket(#3) Case assigned to Magistrate Judge Kandis A. Westmore. Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 11/17/2022. (bw, COURT STAFF) (Filed on 11/3/2022) (Entered: 11/03/2022)

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  • 11/03/2022
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  • Docket(#2) Proposed Summons. (Saveri, Joseph) (Filed on 11/3/2022) (Entered: 11/03/2022)

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  • 11/03/2022
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  • Docket(#1) CLASS ACTION COMPLAINT (with jury demand) (no process) against All Defendants (Filing fee $402, receipt number BCANDC-17694670). Filed by J. DOE 2, J. DOE 1. (Attachments: #1 Appendix A - Full Text of Licenses, #2 Exhibit 1 - Terms of Service, Privacy Statement, #3 Civil Cover Sheet)(Saveri, Joseph) (Filed on 11/3/2022) Modified on 11/4/2022 (cjl, COURT STAFF). (Entered: 11/03/2022)

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