Ninth Circuit affirms dismissal of DMCA copyright-management claims against GitHub, Microsoft, and OpenAI in Doe v. GitHub

What happened: On September 16, 2026, the U.S. Court of Appeals for the Ninth Circuit (Doe v. GitHub, No. 24-7700) affirmed the dismissal of DMCA Section 1202(b) claims brought by anonymous programmers against GitHub, Microsoft, and OpenAI. The plaintiffs alleged that Copilot and Codex reproduced open-source code without attribution, removing or altering copyright management information. The court held that generating new works that never contained CMI is not removal or alteration of CMI under the statute.

Why it matters to creators: The ruling closes one legal avenue programmers were using against AI code generators. Code creators can no longer rely on DMCA copyright-management-information claims where the AI output is treated as a new work rather than a stripped copy of their code.

What is not yet known: The court expressly left open traditional copyright infringement claims. Judge Eric Miller wrote that the court expressed no view on whether substantial similarity between Copilot output and existing code could support an infringement claim, so that question remains for future litigation.