Appeals court: Copilot does not strip copyright notices
On 16 September 2026 the US Court of Appeals for the Ninth Circuit, in Doe v. GitHub, No. 24-7700, affirmed the dismissal of programmers' claims under section 1202(b) of the Digital Millennium Copyright Act. On the plaintiffs' own description, Copilot and Codex do not remove or alter copyright management information from a copy of existing code but create new works that never contained it.
Why it matters
An appeals court answered whether a generative model breaks the ban on stripping author and licence information from a work when it emits similar code without it. The answer is no where the complaint describes a model that learns from existing works and generates new ones rather than looking up and returning stored copies. The court expressly separated this from copyright infringement itself, which it left open, and did not reach claims about training. In this circuit the road to the DMCA's enhanced damages through a model's output is closed; disputes over similar code remain a matter for ordinary copyright.
The opinion is published; the panel was Circuit Judges Sidney R. Thomas and Eric D. Miller (who wrote it) and District Judge Stanley Blumenfeld, Jr., sitting by designation. It is an interlocutory appeal: District Judge Jon S. Tigar dismissed the DMCA claims for want of identical copies and certified that question for appeal himself. The court reached four conclusions. The plaintiffs have standing, having plausibly alleged a substantial risk of injury: the complaint cites research on verbatim emission of training data and GitHub's filter blocking matches with public code of 150 characters or more. Under the output theory there is no claim: information can be removed or altered only from a copy of an existing work, and a model that emits the statistically most likely completion is described as creating a new work; it would be different if Copilot, like a search engine, returned stored copies. The court called identicality a gloss on the words remove, alter and copies rather than a separate element: minor cosmetic changes do not protect someone who reproduces a work and strips its notices. The input theory, removal of notices during training, was not considered, because the plaintiffs did not contest the district judge's statement that the complaint was not about training. The court explained why it would not extend the DMCA to similar works: section 1203(c)(3) permits up to 25,000 dollars per violation, while ordinary statutory damages for copyright are capped at 30,000 dollars per work. For the point that failing to include notices is not removing them, it also cited a Fifth Circuit decision of 21 August 2026 in another case. What the record does not claim: that the court found Copilot non-infringing, on which it expressly expressed no view; that the question of training on other people's code is decided; that the case is over, since the contract claims, under the licence terms, remain pending in the district court. The introduction of the outside report that named this candidate called the ruling a defining precedent that stopped such attempts; that is the report's assessment, not the court's.