Copyright

Ninth Circuit affirms dismissal of DMCA claims over Copilot and Codex: the tools create new works, not stripped copies

• In Doe v. GitHub, No. 24-7700 (D.C. No. 4:22-cv-06823-JST), filed 16 September 2026, the panel affirmed dismissal of claims under 17 U.S.C. § 1202(b). The court held that plaintiffs had Article III standing "because they plausibly alleged a substantial risk of injury", but did not state a claim, because Copilot and Codex "do not remove or alter copyright management information (CMI) from a copy of an existing protected work but instead create new works that never contained that information".
• The opinion says plaintiffs' "own allegations about Copilot show that it is best understood as learning from existing works and then creating new works based on that learning process, not as making copies of existing works", and distinguishes a search engine, which returns copies of material that already exists: "If Copilot functioned like a search engine and produced [results that] contain CMI, then plaintiffs might have a stronger claim that Copilot had removed their CMI. But that is not what plaintiffs have alleged."
• The panel declined to adopt the "identicality" framing the district court and defendants used, writing that "the DMCA does not require literal identicality" and that the concept is "best understood as a gloss on the [statutory text rather than] an independent (and atextual) element of a section 1202(b) claim". It closed by comparing 17 U.S.C. § 1203(c)(3), "permitting up to $25,000 per violation", with § 504(c)(1), "capping traditional copyright statutory damages at $30,000 per work", and declining to convert "run-of-the-mill copyright-infringement claims into DMCA claims".
• The appeal was interlocutory under 28 U.S.C. § 1292(b), argued 11 February 2026; the opinion is by Judge Eric D. Miller, joined by Judge Sidney R. Thomas and District Judge Stanley Blumenfeld, Jr., sitting by designation. The court "express[ed] no view" on whether substantial similarity would support an ordinary copyright infringement claim, so this decision closes the DMCA theory, not copyright litigation against the tools.