Ninth Circuit: AI-generated code is not a "copy" under the DMCA

On 16 September 2026, the US Court of Appeals for the Ninth Circuit ruled in Doe v. GitHub (case no. 24-7700), affirming the district court’s dismissal of the Section 1202 DMCA claims. Several law firms published analyses in early October, and the core conclusion is that this route does not work.

Where the dispute sits

DMCA Section 1202 governs copyright management information — author attribution, copyright notices, licence terms. Its logic: you may use a work, but you may not remove or falsify its attribution information.

The plaintiffs’ theory was that Copilot emits code snippets drawn from public repositories without carrying the original authors’ attribution and licence notices, which amounts to removing CMI.

The Ninth Circuit did not accept the reasoning. It held that generative AI outputs are not “copies” within the meaning of Section 1202. If it is not a copy, there is no copy from which CMI could have been removed.

Why the holding matters

Section 1202 is a useful provision in conventional copyright litigation precisely because it does not require proving substantial similarity. You do not have to show that a passage was copied; you only have to show that attribution was stripped. The evidentiary bar is much lower.

What this ruling removes is exactly the shortcut copyright owners wanted most in AI cases.

What it does not settle

The ruling closes only the Section 1202 route. It does not conclude the copyright question for AI-generated code.

• Conventional infringement claims (substantial similarity) do not disappear.
• Fair use remains unresolved.
• Compliance with open-source licences remains the user’s own obligation.

The case itself also continues; this was an interlocutory appeal.

What it means for people writing code

I do not use Copilot, so the direct impact on me is zero. But it is instructive about where responsibility sits.

Legally, “AI output is not a copy” does not mean “you can use it however you like”. If you put AI-generated code into your project, licence compliance is still on you. The ruling affects whom a plaintiff can sue and on what theory, not whether you should follow the licence.

My take

I understand the ruling, but I do not read it as final.

It closes the DMCA shortcut, which pushes the dispute back into conventional copyright analysis — the slower, more expensive framework that requires actually arguing substantial similarity. That is good news for defendants and bad news for rights holders hoping for a quick characterisation.

None of the questions that actually need answers went away. They just moved somewhere harder to answer.