In Doe v. GitHub, four anonymous programmers brought a class action seeking an extraordinary $9 billion in statutory damages. Their complaint alleges that GitHub and OpenAI violated Section 1202 of the Digital Millennium Copyright Act when it removed (or at least failed to reproduce in AI outputs) “copyright management information” from code uploaded to GitHub.
The clinic drafted an amicus brief signed by sixteen intellectual property law professors in support of GitHub, providing expert analysis of the purpose and scope of the law. The brief clarifies that the legislative history and structure of Section 1202, as well as cases applying the statute, show that the law was designed to deter digital piracy of perfect copies of works. Accordingly, liability should be limited to cases involving identical copies (not those that are merely substantially similar), arguing that the plaintiff’s claim “is an exceptional stretch of a law that was intended to do much different and narrower work.”