Ninth Circuit Blocks Broad DMCA Claims Against GitHub and OpenAI
The Ninth Circuit ruled against broad DMCA claims targeting AI code generators like GitHub Copilot.
Why it matters: This ruling prevents a potential expansion of copyright claims that could limit programming and online innovation, maintaining legal clarity for developers and platforms.
- On September 16, 2026, the Ninth Circuit upheld dismissal of DMCA claims against GitHub, Microsoft, and OpenAI.
- Plaintiffs alleged that Copilot and Codex AI tools reproduced open-source code without attribution, violating 17 U.S.C. § 1202(b) of the DMCA.
- The court held that generating new works without copyright management information (CMI) is not removal or alteration of CMI under § 1202(b).
- Decision preserves legal certainty for programmers and internet companies by limiting DMCA liability overreach.
On September 16, 2026, the U.S. Court of Appeals for the Ninth Circuit delivered a significant ruling in Doe v. GitHub, Inc.. The court affirmed the dismissal of Digital Millennium Copyright Act (DMCA) claims filed by anonymous programmers against GitHub, Microsoft, and OpenAI. The plaintiffs argued that AI-powered tools like GitHub's Copilot and OpenAI's Codex reproduced portions of their open-source code without proper attribution, violating 17 U.S.C. § 1202(b) of the DMCA.
The central legal question was whether generating new code without copyright management information (CMI) could be considered removing or altering CMI from existing works under the DMCA. The Ninth Circuit clarified that the AI tools generate new works that never contained CMI, rather than removing or modifying CMI from existing code.
Judge Eric Miller noted, "To be sure, Copilot’s output may in some cases be substantially similar to existing code. We express no view on whether that similarity would allow plaintiffs to assert a claim for copyright infringement." The court's decision thus focused specifically on DMCA § 1202(b) claims and limited the scope of those claims in the context of AI-generated code.
This ruling preserves legal certainty for developers, programmers, and internet platforms by preventing an expansive interpretation of DMCA provisions that could have restricted common programming activities and the use of AI tools in software development.
However, the court did not decide on the broader question of traditional copyright infringement related to AI-generated code, leaving that issue open for future litigation.
By the numbers:
- September 16, 2026 — date of Ninth Circuit ruling
- 24-7700 — docket number of Doe v. GitHub, Inc.
- 17 U.S.C. § 1202(b) — relevant DMCA statute limiting liability for removal of copyright management information
Yes, but: The ruling does not address whether AI-generated code might infringe copyright under traditional infringement law, leaving that for future cases.
What's next: Further litigation may clarify whether AI-generated code constitutes traditional copyright infringement beyond DMCA claims.