Ninth Circuit narrows DMCA CMI claims against AI code tools

The U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of Digital Millennium Copyright Act claims against GitHub, Microsoft, and OpenAI, finding that the plaintiffs did not allege removal or alteration of copyright management information from copies of their code. The court rejected a literal-identicality requirement, explaining that §1202(b) focuses on whether CMI was actually removed from an existing protected work, not whether the infringing work is identical. However, it concluded that Copilot’s process of learning from existing code and generating new code does not constitute making copies from which CMI was removed. The decision also declines to decide whether AI output that is substantially similar to copyrighted code could support a copyright infringement claim, and it leaves unresolved the “input” theory that plaintiffs forfeited. For technology and AI clients, this clarifies that DMCA claims require pleading facts showing CMI was stripped from a pre-existing copy, not merely that AI output lacks attribution.