Even if it requires it, that clause is rarely ever used. You only need to notify if you’re pursuing through your insurance.

https://np.reddit.com/r/Insurance/comments/1fhb7ac/someone_hit_my_car_and_admitted_liability_and/ln9afbh/?context=3

Once again something has stuck in my craw from r/programming that I must post here. It is my fault and mine alone that I gave up software engineering to go to law school, and now I must repent for my sins.

There has been a stack of lawsuits against AI companies alleging various issues (principally copyright infringement in the Sarah Silverman-involved suit you may have heard of). Much ink has been spilled; I won't re-spill it here.

Another suit targets OpenAI and Microsoft (GitHub) about copying code: Doe et al. v. GitHub, Inc. et al., No. 22-cv-06823 (N.D. Cal.). . A link to the order partially dismissing this case is here.

So, the comment that triggered all this: https://np.reddit.com/r/programming/comments/1dzjt2d/comment/lcgqd20/?utm_source=share&utm_medium=web3x&utm_name=web3xcss&utm_term=1&utm_content=share_button

To give credit to the author, this starts strong—especially when OLF clicks onto good criticisms of the plaintiff here—but falls apart halfway through. Onto the fisking:

For people who want actual information instead of garbage clickbait headlines:

Commendable in spirit; flawed in execution. Let's begin:

DMCA

A. Plaintiffs claim that copyrighted works do not need to be exact copies to be in violation of DMCA based on a non-binding court ruling. Judge disagrees and lists courts saying the contrary.

This seems like a screwup on the plaintiffs as it's 100% possible to get AI chat bots / code generators to spit out 1:1 code that can be thrown into a search engine to find its origin.

This is what I mean by starting off strong—the plaintiffs here repeatedly botched a pretty key part of asserting a DMCA 1202(b) claim: the copyright management information, much like the underlying copyright itself, must be a copy for you to make out a claim. I love this line by the judge:

Plaintiffs’ opposition spills much ink arguing that identicality is not an element of a Section 1202(b) claim. See ECF Nos. 234 at 12–16, 235 at 12–15. Having twice addressed this issue already, the Court will not revisit it at length.

Order at 4:17-19 (emphasis added).

*chef's kiss*

Anyway.

B.

they "do not explain how the tool makes it plausible that Copilot will in fact do so through its normal operation or how any such verbatim outputs are likely to be anything beyond short and common boilerplate functions.”

Nearly everything could be categorized as "short and common boilerplate functions". Unless you create some never heard before algorithm, you're code is free for the taking according to this judge. This is nearly an impossible standard.

...no. I don't want to go in too hard on OLF here, because this is a tricky area,^(1) but this is just not correct for three separate reasons.

First, the judge here is referring to the short phrase doctrine, which is a well known copyright doctrine dating back to 1899. See, e.g., Southco, Inc. v. Kanebridge Corp., 390 F.3d 276, 285 (3d Cir. 2004). Applying it—along with scènes à faire, merger, Baker v. Selden-style functional analysis—can be difficult, sure. But these aren't intractable standards, and once you think about why these doctrines are in place, it isn't that hard to step through the analysis and make some arguments. Will there be debate in each case? Of course, but that's what litigators are for.

Nearly everything could be categorized as "short and common boilerplate functions."

This is just wrong? If this were true, then there would be no software copyright—it isn't that hard to show that the program you wrote is (probably) more than just a short phrase, and thus copyrightable.

Second, this misses the actual flaw by the plaintiffs here, which they have not closed the logical link between their works and what Copilot will do. This is a fundamental flaw throughout all three versions of the complaint here, and it's wild to me that they botched this three times when the judge made it clear repeatedly that this flaw needed to be addressed. You have to show that you were harmed! Step 1 for copyright infringement/DMCA claims is to show you own a copyright, but Step 2—arguably the most important step—is to show that you were harmed. How did you not spell this out in the complaint beyond saying that "a user could conceivably view an identical match" to your work? Order at 5:18-19.

Third, and most fundamentally, this statement, to me, is evidence of the underlying misunderstanding by OLF here that pervades the entire comment. To wit:

Unless you create some never heard before algorithm, you're code is free for the taking according to this judge. This is nearly an impossible standard.

This is not what the judge said. But to skip to the larger point, OLF's biggest problem is that they do not seem to get that to make out any complaint in court, you have to show that you were specifically harmed (this is the idea of a "particularized" harm). The bulk of Plaintiffs' mistakes here are that they never upgraded their generalized grievance against Microsoft/OpenAI into a showing that they were harmed in a particularized way. Judge Tigar's ruling is aimed squarely at this issue—for these plaintiffs to have made out their claims, they needed to show the logical link that demonstrates their harms, and they couldn't do it, so they're out. He is definitely not saying that "[u]nless you create some never heard before algorithm, you're [sic] code is free for the taking . . . ."

^(1) Even the Supreme Court dodged this question in Oracle v. Google, skipping right over the copyrightability question to take up the fair use question [and botch it, but that's an argument opinion for another day].

C.

In addition, the Court is unpersuaded by Plaintiffs’ reliance on the Carlini Study. It bears United States District Court Northern District of California emphasis that the Carlini Study is not exclusively focused on Codex or Copilot, and it does not concern Plaintiffs’ works. That alone limits its applicability.

Most AI stuff works the same and has the same issues.

But again, for you to have a claim, it doesn't matter if these things happen in the abstract—you have to plead that the people you accuse have actually harmed you. The study is a general study of AI systems, and you still have to plead that your material was copied.

D.

Accordingly, Plaintiffs’ reliance on a Study that, at most, holds that Copilot may theoretically be prompted by a user to generate a match to someone else’s code is unpersuasive.

AI is sometimes unreliable, therefore is immune to scrutiny?

*sigh*

Not only is this not what the judge said (again), but also it's the same error (again)—to make out a claim, you have to show that you were actually harmed. As part of that, you have to close the logical links in the chain between the defendant's actions and your harm. That is what the judge is saying here. The judge is absolutely not saying generally that AI's unreliability dooms copyright/DMCA claims.

Unjust enrichment

A.

The Court agrees with GitHub that Plaintiffs’ breach of contract claims do not contain any allegations of mistake, fraud, coercion, or request. Accordingly, unjust enrichment damages are not available.

Failure on the plaintiffs again.

Hard to quibble here—it's just not in there, and California requires it absent an express contractual provision. Plaintiffs just missed this one.

B.

Put differently, the unjust enrichment measure of damages was explicitly written into the parties’ contract.

Previous court cases justifying unjust enchrichment onlt [sic] went through because there was a clause in the license("contract").

This is right until it's wrong. It isn't that unjust enrichment can only be found when there's an express contractual provision, but rather that it's your only saving grace if you can't show that there was a mistake, fraud, coercion, or request that would justify voiding or rescinding the contract, which is really what kicks off unjust enrichment as a damages theory. If you want equitable remedies (of which unjust enrichment and disgorgement of profits is one), then you have to tee them up properly.

C. Didn't defend a motion to dismiss, abandoning the claim

This doesn't say what the Plaintiffs "[d]idn't defend," which is that "Plaintiffs' opposition fails to address GitHub's motion to dismiss Plaintiffs' punitive damages claim." Order at 15:1-2. Just a total error on Plaintiffs' part here.

TL;DR: Not as dire as the article title makes it sound like but plaintiffs have garbage lawyers and California laws suck. Include unjust enrichment in your software licenses.

I agree that Plaintiffs' lawyers were not the greatest examples of lawyering. The DMCA is a federal law, but whatever—nobody seems to know the federal/state difference anymore. Do yourself a favor and hire a lawyer to write contracts for you, and if you really want to, ask them to include equitable remedies.

Hello! I was recently promoted to supervisor at a resort where I work. My lodging director told me a month ago that when the next manager was chosen that I would be selected. Shortly after that for whatever reason he went back on his word and now the senior lodging manager's sister is being eyed for the position. The main issue is that the senior lodging manager would get in screaming matches with her sister and cause everyone on our team to be shocked and disturbed in the past when she was a supervisor. It even happened in front of guests. I went to my lodging director and told him what was happening and it hasn't seemed to have changed his mind on promoting her. Their mother recently passed away which is terrible, but they got special treatment with extended time off that other team members don't get. I guess my point is, if her sister is promoted and I am not, could I potentially sue for nepotism? Thank you!