9th Circuit: GitHub Copilot Output Not a 'Copy' Under DMCA
The 9th Circuit ruled GitHub Copilot’s AI output isn’t a 'copy' under the DMCA.
Why it matters: This ruling clarifies legal protections for AI-generated code, affecting AI deployment and copyright litigation in tech and legal sectors.
- On September 16, 2026, the 9th Circuit affirmed dismissal of DMCA claims against GitHub, Microsoft, and OpenAI.
- Plaintiffs alleged Copilot reproduced code without author attribution, removing copyright management information (CMI).
- The court held Copilot creates new works that never contained CMI, so no removal or alteration under DMCA § 1202(b).
- The court did not decide on copyright infringement or address breach of contract claims still pending in district court.
On September 16, 2026, the U.S. Court of Appeals for the Ninth Circuit ruled that the code generated by GitHub Copilot, an AI tool developed by GitHub, Microsoft, and OpenAI, does not constitute a "copy" under the Digital Millennium Copyright Act (DMCA) § 1202(b). This decision affirmed the dismissal of DMCA claims brought by anonymous programmers who alleged that Copilot reproduced parts of their code without proper attribution or copyright management information (CMI).
The court explained that Copilot and OpenAI’s Codex generate entirely new code that never contained any CMI, and therefore the tool does not remove or alter CMI from existing works. As Circuit Judge Eric D. Miller noted, "The complaint describes an AI tool that does not look up and reproduce stored work but rather creates new work."
Importantly, the court did not rule on whether Copilot’s outputs infringe on copyright, as that issue was not before the panel. Additionally, two breach of contract claims concerning Copilot’s use of open-source code remain active in the district court. The ruling thus focuses solely on DMCA liability for the removal or alteration of copyright information, not copyright infringement itself.
This ruling provides valuable legal clarity on the status of AI-generated content under the DMCA, which will influence how legal professionals and tech companies assess the risks and protections related to generative AI tools. It also sets an important precedent in the evolving intersection of AI technology and intellectual property law.
By the numbers:
- September 16, 2026 — Date of Ninth Circuit ruling
- No. 24-7700 — Case number
- 3 judges — Panel deciding the DMCA claims
- 2 — Breach of contract claims still pending
Yes, but: The court declined to address copyright infringement questions and did not consider the impact of AI training data removing CMI, leaving these issues unresolved.
What's next: The district court will continue to hear the two pending breach of contract claims related to Copilot’s use of open-source code.