The US Court of Appeals for the Ninth Circuit affirmed the dismissal of Digital Millennium Copyright Act (DMCA) claims that alleged artificial intelligence (AI) tools removed or altered copyright management information (CMI) from the programmers’ protected works. Doe et al. v. GitHub, Inc., et al., Case No. 24-7700 (9th Cir. Sept. 16, 2026) (Thomas, Miller, Blumenfeld, JJ.)
GitHub operates a platform where developers can store, manage, and share software code. GitHub Copilot and OpenAI Codex are generative AI tools trained on millions of software projects available on GitHub. Copilot uses statistical patterns learned from its training data to generate code in response to user prompts. The plaintiffs are programmers who published copyrighted code in public GitHub repositories under open-source licenses that generally required attribution, including the author’s name and copyright notice.
The plaintiffs sued GitHub, Microsoft, and OpenAI, alleging that Copilot sometimes reproduced their code without the attribution, copyright notices, or license terms accompanying the code in the GitHub repositories. The plaintiffs asserted that these omissions violated § 1202(b) of the DMCA.
The district court dismissed the DMCA claim, reasoning that § 1202(b) required the allegedly infringing work to be identical to the original work from which the CMI had been removed. Because the plaintiffs alleged that Copilot generated near-identical, modified, or functionally equivalent versions of their code, the district court concluded that they had failed to state a claim. It certified for interlocutory appeal the question of whether § 1202(b) imposes an identicality requirement.
Removal or alteration of CMI
Section 1202(b) prohibits intentionally removing or altering CMI, and distributing works or copies of works knowing that CMI has been removed or altered without authority.
The plaintiffs argued that § 1202(b) does not require the defendant’s output to be literally identical to the copyrighted work. They contended that a literal-identicality rule would allow a defendant to evade the DMCA simply by making a trivial change to a copied work after removing its CMI – for example, changing one word on a page. The defendants, while conceding that literal identicality was not required, argued that § 1202(b) requires CMI to have been removed or altered from a copy of the plaintiff’s existing work. If Copilot instead generates a new or derivative work that never contained the plaintiff’s CMI, there is nothing from which CMI was “removed” or “altered.”
The Ninth Circuit rejected a literal identicality requirement and characterized “identicality” as a “misnomer.” The relevant inquiry is not whether the works are identical, but whether CMI was actually removed or altered from a copy of an existing protected work. Identicality may be evidence of removal where two works are otherwise identical, but the allegedly infringing version omits CMI contained in the original. Under those circumstances, a factfinder may reasonably infer that the CMI was removed. But literal identity is not required. Minor cosmetic changes will not necessarily defeat a claim where a defendant substantially or entirely reproduces an existing work and removes its CMI.
Applying that standard, the Ninth Circuit concluded that the plaintiffs had not alleged removal or alteration of CMI from copies of their code. According to the complaint, Copilot uses statistical patterns learned from existing code to predict and generate code in response to user prompts. The Court found that this process was best understood as learning from existing works and creating new works, rather than making copies of existing works. The Court distinguished Copilot from a search engine that retrieves and displays stored copies of existing material. It explained that if Copilot operated like a search engine and produced copies of plaintiffs’ code without the CMI that accompanied those copies, the plaintiffs might have a stronger argument that the CMI had been removed.
The Ninth Circuit emphasized that Copilot’s output could nevertheless be substantially similar to copyrighted code, but expressly declined to decide whether such output could support a copyright infringement claim. Substantial similarity without attribution by itself does not establish a § 1202(b) violation. Otherwise, the Court explained, ordinary copyright infringement claims could be transformed into DMCA claims carrying enhanced statutory damages.
The plaintiffs also argued that the defendants violated § 1202(b)(1) by removing CMI from their code before using the code as Copilot training data. The Ninth Circuit declined to consider this separate “input” theory because the plaintiffs had forfeited it in the district court, leaving unresolved whether removing CMI from copyrighted works before using them as AI training data could independently violate §1202(b).
