The DMCA was enacted to balance the rights of users with those of copyright owners in light of new technologies.

Plaintiffs duplicate their DMCA, tort, passing off, and privacy claims as purported violations by GitHub of California’s Unfair Competition Law.

Plaintiffs purport to advance an unjust enrichment claim against GitHub (Count VI), but “there is no cause of action in California for unjust enrichment.”

Plaintiffs’ breach of contract claim fails at the outset because the Complaint does not identify the contract(s) or provision(s) that each Defendant breached.

As Plaintiffs acknowledge, Copilot’s suggestions are not copied from any particular source, but generated based on patterns it has “seen the most."

Under California law, to state a claim for breach of contract a plaintiff must plead the contract.

GitHub’s TOS nor any of the common open source licenses prohibit either humans or computers from reading and learning from publicly available code.

The TOS informs users that “You own content you create, but you allow us certain rights to it.”

Plaintiffs purport to assert a claim under the Lanham Act for “reverse passing off.”

DOE v. Github (original complaint) Court Filing, retrieved on November 3, 2022 is part of HackerNoon’s Legal PDF Series.