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United States · US-004

Doe v GitHub

HELDU.S. District Court for the Northern District of California; U.S. Court of Appeals for the Ninth Circuit4:22-cv-06823; 9th Cir. 24-7700Ninth Circuit affirmed dismissal of DMCA §1202 claims; contract claims remain pending below
Copyright Management Information / DMCA §1202OutputsTrainingLicensing

Key holding or allegation

The Ninth Circuit rejected a freestanding strict identicality rule but affirmed dismissal: on the pleaded output theory, newly generated code that never contained plaintiffs’ CMI was not a copy from which CMI had been removed. It left the input-stage training-data theory unresolved because plaintiffs had forfeited it below.

Why it matters

Leading U.S. appellate generative-code/CMI decision distinguishing AI-output §1202 theories from unresolved input-stage CMI removal.

Facts

Open-source developers challenged Copilot's use and output of code, including alleged removal or alteration of copyright-management information.

Issues before the court

Whether DMCA §1202 requires literal identity between source and challenged copy; whether AI outputs can be copies from which CMI was removed; and whether an input-stage CMI-removal theory was preserved.

What the court did not decide

The court did not decide ordinary copyright infringement based on substantial similarity, overall Copilot training legality, or the merits of the forfeited input-stage CMI-removal theory.

Procedural timeline

2024

U.S. Court of Appeals for the Ninth Circuit
Interlocutory appeal opened: Interlocutory appeal concerns GitHub Copilot copyright-management-information issues, including the relationship between generated output and source work.

PLEADING SURVIVED
2026-09-16

U.S. Court of Appeals for the Ninth Circuit
Published appellate opinion: Ninth Circuit affirmed dismissal of §1202 claims. It rejected a freestanding strict identicality rule, but held the pleaded output theory failed because newly generated code never containing plaintiffs’ CMI was not a copy from which CMI had been removed; input-stage removal theory was forfeited and left unresolved.

HELD