Coders lose appeal in copyright fight against AI tools

The Ninth Circuit rejected Digital Millennium Copyright Act claims against GitHub Copilot and OpenAI's Codex, ruling the tools create new works rather than altered copies of existing ones, so they can't be accused of stripping copyright management information that was never embedded in the output. Judge Eric Miller, a Trump appointee, wrote that the panel takes no position on whether Copilot's output might still infringe copyrights through ordinary substantial-similarity claims.

The anonymous open-source programmers who brought the suit in 2021 sought over $9 billion in penalties, alleging Copilot amounted to software piracy on an unprecedented scale by reproducing licensed code without attribution. Their breach-of-contract claims remain alive in the trial court, and the panel found they had standing to sue in the first place, citing research that large language models sometimes reproduce memorized training data verbatim.

The court declined to let a garden-variety copyright dispute be reframed as a DMCA claim carrying steeper statutory damages, leaving the programmers to refile under the more ordinary infringement theory if they want to keep pressing the underlying complaint.

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