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Ninth Circuit rejects DMCA claim over AI coding tools' output, and leaves the training-side question open

In a published opinion, the Ninth Circuit affirmed the dismissal of a Digital Millennium Copyright Act claim brought by programmers against GitHub, Microsoft and OpenAI. The programmers alleged that Copilot and Codex, trained on code posted to GitHub, reproduce their code without its attribution and license notices, violating section 1202(b), which bars removing or altering copyright management information. The panel held the programmers had standing because they plausibly alleged a substantial risk of injury. But it held the claim failed: as alleged, the tools do not remove that information from a copy of an existing work; they create new works that never contained it. The panel did not decide whether removing the information during training violates the statute, treating that argument as forfeited. It expressed no view on copyright infringement and did not address fair use or how training material was obtained. The ruling binds federal courts in the Ninth Circuit, including the Northern District of California, where several AI book cases are pending. OpenAI filed it on October 1, 2026 as supplemental authority for its summary judgment motion in the New York OpenAI litigation.