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Judge Tigar dismisses the Copilot programmers' DMCA § 1202(b) claim with prejudice for lack of identical copies, leaving only open-source license breach claims against GitHub, Microsoft and OpenAI
Anonymous programmers sued GitHub, Microsoft and OpenAI in November 2022 over Copilot, alleging it was trained on public repositories and emits their code without the notices open-source licenses require. On Jan. 3, 2024 (Dkt. 189), the court dismissed most claims, including the DMCA § 1202(b) claim because the output was not alleged to be identical to their code, with leave to amend that claim. In the June 24, 2024 order on the second amended complaint, Judge Jon S. Tigar dismissed the § 1202(b) claim again, this time with prejudice, holding that Ninth Circuit district court case law requires removal of copyright management information from identical copies and that the plaintiffs' examples, including a duplication-detection setting, did not show that. He declined to dismiss the breach of contract claim for violation of open-source licenses against all defendants, and struck the request for unjust enrichment relief and punitive damages. The court later certified the § 1202(b) question for interlocutory appeal; the Ninth Circuit's Sept. 16, 2026 ruling is already in this feed.
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