GitHub faces potential class action for violating coders' rights

Coder and lawyer Matthew Butterick accuses GitHub of violating licencing terms and creating a 'new walled garden' with its AI-powered Copilot plugin

Microsoft-owned GitHub is facing potential legal action from coder and lawyer Matthew Butterick who claims that GitHub Copi­lot, an autosuggestion plugin for development environments like Visual Studio, may be breaking licencing agreements as it mines repositories to feed its suggestions.

Copilot is based on a machine learning engine, and unlike standard autosuggestion tools, which propose small snippets of code, it can suggest large blocks of code to developers as they are typing. The tool, developed by OpenAI, was trained on millions of public code repositories, including those on GitHub.

The problem, Butterick claims, is that Copilot's developers used these open source repos without due regard for their licencing terms, many of which, for example, will require attribution. Attributions are completely lacking from the tool.

The Soft­ware Free­dom Con­ser­vancy, a non-profit organisation centred around ethical technology, has asked Microsoft for evi­dence that it is not breaking licencing terms under the concept of 'fair use' with Copilot, but has so far not received a satisfactory reply, according to Butterick.

"Copi­lot's whizzy code-retrieval meth­ods are a smoke­screen intended to con­ceal a grubby truth: Copi­lot is merely a con­ve­nient alter­na­tive inter­face to a large cor­pus of open-source code," he wrote on a website created for the purpose. "There­fore, Copi­lot users may incur licens­ing oblig­a­tions to the authors of the under­ly­ing code."

In his post, Butterick goes on to accuse Microsoft of seeking to create a "new walled garden", by consolidating huge chunks of open source code behind a single interface, thus shutting out more traditional means by which developers share code.

"Over time, this process will starve these com­mu­ni­ties. User atten­tion and engage­ment will be shifted into the walled gar­den of Copi­lot and away from the open source projects them­selves—away from their source repos, their issue track­ers, their mail­ing lists, their dis­cus­sion boards. This shift in energy will be a painful, per­ma­nent loss to open source."

Butterick has engaged class-action litigators the Joseph Saveri Law Firm to see if there are grounds for a lawsuit against GitHub.