Victory Appeals Court Rejects Expansive New Copyright Claim

The U.S. Court of Appeals for the Ninth Circuit rejected an attempt to treat Section 1202 of the Digital Millennium Copyright Act - which bans intentional removal of copyright management information (CMI) - as a broad new basis for copyright liability when generative models produce code without attribution. Plaintiffs who anonymously contributed code on GitHub alleged OpenAI and Microsoft trained large language models on that code and produced outputs that resembled their work but lacked CMI. The court held that the absence of CMI in a newly created work does not, by itself, prove someone illegally removed that information, and declined to expand §1202 from a backstop against tampering with CMI into a general prohibition on creating works that never contained CMI.

The decision follows arguments that adopting the plaintiffs’ theory would have transformed routine, lawful activities - remixing, teaching adaptations, reverse engineering, and indexing - into potential federal claims, disproportionately threatening independent developers who cannot afford protracted litigation or statutory damages. The ruling preserves conventional copyright remedies for literal copying and leaves contract-based claims intact, while reaffirming that courts should apply rights Congress actually enacted rather than inventing novel copyright protections that would chill innovation and expression.