Ninth Circuit Holds Copilot Creates New Code, Not Stripped Copies (www.fenwick.com)

The Ninth Circuit recently upheld the dismissal of claims against GitHub, Microsoft, and OpenAI regarding their AI tools, GitHub Copilot and Codex, under the Digital Millennium Copyright Act (DMCA). The court found that these generative AI models create new code outputs rather than copying existing works, meaning they do not "remove" or "alter" copyright management information (CMI) associated with those works. This ruling clarifies that the "identicality" requirement—once seen as central to such claims—operates more as an evidentiary inference. Essentially, if the AI-generated output shows material differences from the original code, it cannot be deemed as a copy that had CMI removed. This decision is significant for the AI/ML community as it establishes a legal precedent that distinguishes between original works created by AI and copies of existing works lacking attributions. It reduces potential liability for generative AI developers while keeping copyright infringement claims intact. The court emphasized that a complex, probabilistic generation process, which characterizes how tools like Copilot operate, does not qualify as removing CMI from existing works. As the landscape of copyright law adapts to AI advancements, both creators and developers must navigate the implications for license agreements and attributions, especially as the focus may shift toward enforcement based on contract claims rather than statutory claims.