It's a war of code and intellectual property rights in a recent lawsuit filed by GitHub programmers against GitHub, its parent company Microsoft, and a Microsoft tech partner OpenAI. In a first-of-its-kind class action lawsuit, GitHub programmers allege that the defendants violated open-source licensing because their code is being used to train one of Microsoft's AI tools, GitHub Copilot.

GitHub is an online software development program that allows programmers to create code, store it, and collaborate on projects with one another. GitHub CoPilot is an AI programming tool that suggests code within a text editor to help simplify the coding process for developers. The program analyzes the context of the code that is being written and offers suggestions it may see as appropriate.

GitHub CoPilot is powered by another AI system, Codex. Codex is the product of the technology company OpenAI and is licensed out to Microsoft. OpenAI advertises that the system Codex was trained on “millions of public repositories” and that it is “an instance of transformative fair use” as it helps power the functionality of CoPilot.

GitHub programmers on the other hand argue that the commercialized use of Copilot is a violation of fair use as it violates the open-source licensing terms. The lawsuit explains that CoPilot “violates the licenses that open-source programmers chose and monetizes their code despite GitHub’s pledge never to do so.”

The programmers allege that as detailed by the licensing, the code cannot be commercially redistributed and that modification is restricted so that the name of the authors can be preserved.

The lawsuit explains, "Defendants claim Codex and Copilot do not retain copies of the materials they are trained on. In practice, however, the output is often a near-identical reproduction of code from the training data." The lawsuit adds, "Codex does not identify the owner of the copyright to this output, nor any other—it has not been trained to provide attribution. Nor does it include a Copyright Notice nor any License Terms attached to the output. This is by design — Codex was not coded or trained to reproduce such data."

Attorney Matthew Butterick is representing plaintiffs in the class action lawsuit and has partnered with the Joseph Saveri Law Firm. Butterick is also a programmer and like many other programmers who have used Copilot, Butterick has expressed the many legal flaws that exist within the program.

"As a longtime open-source programmer, it was apparent from the first time I tried Copilot that it raised serious legal concerns, which have been noted by many others since Copilot was first publicly previewed in 2021," Butterick explained.

Attorney Joseph Saveri explains that “corporations like Microsoft, GitHub, and OpenAI cannot unfairly profit from the work of open-source creators." Saveri adds, "This case represents the first major step in the battle against intellectual-property violations in the tech industry arising from artificial intelligence systems. In this case, the work of open-source programmers is being exploited.”

For many programmers, this lawsuit is long-awaited. GitHub was purchased by Microsoft in 2018. After the introduction of GitHub CoPilot, programmers voiced concerns about the potential violation of intellectual property laws as Microsoft was using the program in a commercialized manner. Butterick highlights that Microsoft's commercial use of Copilot is a direct violation of copyright and that It deters programmers from using open-source platforms.

Since being acquired in 2018, GitHub has had an annual revenue of roughly one billion dollars. This is a significant jump from the $200 to $300 million annual revenue before being acquired. Currently, over 90 million active users use the program with much of the revenue coming from GitHub Copilot.