On September 16, 2026, the Ninth Circuit held that a generative AI model does not “remove or alter” copyright management information (“CMI”) under Section 1202(b) of the Digital Millennium Copyright Act (“DMCA”) when its output omits attribution that the training materials carried. Doe 1 v. GitHub, Inc., No. 24-7700, 2026 WL 2728464, at *1 (9th Cir. Sept. 16, 2026). Judge Eric Miller wrote the opinion, joined by Judge Sidney Thomas and District Judge Stanley Blumenfeld, Jr. of the Central District of California, sitting by designation.
The case focused on the operation of GitHub, “the world’s largest hosting service for open-source software—that is, software whose creators choose to make its source code publicly available.” Id. at *2. Much of the open-source code in GitHub’s public repositories is licensed on conditions requiring that a copy of the license, including the author’s name and copyright notice, be included with any copy or derivative of the code. Id. Copilot, built by GitHub and OpenAI, is a large language model trained on billions of lines of code available of GitHub. Id. Plaintiffs are programmers who published licensed code on Github. The Plaintiffs sued GitHub, Microsoft (GitHub’s owner), and OpenAI, alleging that in violation of Sections 1202(b)(1) and (3), Copilot sometimes generates verbatim or near-verbatim copies of published code, stripped of the attribution, notices, and license terms that accompanied the original. Id. at *2–*3.
Judge Jon S. Tigar of the Northern District of California dismissed the DMCA claim with prejudice, reasoning that Section 1202(b) requires the copies to be “identical” and that Plaintiffs’ own examples described output that was a “modified format,” “variation[ ],” or “functional[ ] equivalent” of the licensed code. Id. at *3. Two breach-of-contract claims survived, and the court certified its dismissal order for interlocutory appeal under 28 U.S.C. § 1292(b), identifying as the controlling question of law whether Section 1202(b) imposes an identicality requirement. Id. Plaintiffs appealed, pressing two theories: an “input” theory and an “output” theory.
