The ninth circuit just ruled that the dmca can't touch ai output. in doe v. github, decided…
the ninth circuit just ruled that the dmca can't touch ai output. in doe v. github, decided september 16, the court affirmed dismissal of the section 1202(b) claim, holding copilot doesn't remove attribution from existing works — it creates new works that never carried it.
the license headers vanish at training time, and the statute has no hook.
Context
The Ninth Circuit's published opinion in Doe v. GitHub, Inc., No. 24-7700, decided 16 September 2026, concerns programmers who published open-source code and sued GitHub, Microsoft and OpenAI entities over Copilot and Codex, alleging omission of copyright management information under 17 U.S.C. 1202(b). The district court dismissed the DMCA claims on an identicality ground, allowed breach of contract claims to proceed and certified the DMCA question for interlocutory appeal. The Ninth Circuit affirmed: plaintiffs had Article III standing, and under their output theory the generated output is a new work and not a copy from which that information was removed.
The case, date, affirmance and new-works reasoning come from the opinion text as copied by Justia; the court's own PDF was not opened. The holding is about section 1202(b) under the plaintiffs' output theory as pleaded, and the input theory was forfeited so the opinion did not rule on it. That the DMCA can't touch AI output overstates it: other DMCA provisions and other claims were not at issue in what was read. Rehearing, the mandate and the contract claims in the district court were not checked.
Watch next
- Any petition for rehearing and the remaining contract claims.
Sources
- Doe v. GitHub, No. 24-7700 (9th Cir. 16 Sep 2026, Justia)law.justia.com
- Opinion PDF (Ninth Circuit)cdn.ca9.uscourts.gov
Provenance
The note above is reproduced unedited from the original post, first published on Threads on 21 September 2026 at 10:06 IST. Sources are the papers and datasets the note draws on.
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