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Microsoft and GitHub secure Ninth Circuit win in nation’s first appellate decision on generative AI and Digital Millennium Copyright Act liability


2 minute read | September.18.2026

  • On September 16, Microsoft and GitHub secured a significant appellate victory, with the Ninth Circuit affirming the dismissal of claims under the Digital Millennium Copyright Act in the nation’s first significant appellate decision addressing liability for generative AI tools. The decision was covered by Reuters and Bloomberg Law, among other publications.
  • Plaintiffs — a group of anonymous coders — alleged that GitHub Copilot “removes” or “alters” copyright management information (CMI) if it generates code that does not include the CMI originally included with works in the model’s training set. The district court dismissed the DMCA claims but certified its order for interlocutory appeal to enable the Ninth Circuit to address the proper standard for evaluating CMI removal claims.
  • In a unanimous precedential opinion, the Ninth Circuit held that Plaintiffs failed to state a CMI removal claim under the DMCA. The Court found that Copilot’s alleged process of generating code is akin to “creat[ing] a new work,” rather than “removing” or “altering” CMI from an existing work.
  • The court expressly rejected Plaintiffs’ reading of the DMCA, which would have dramatically expanded the scope of liability so as to “supplant traditional copyright protections and subject defendants to potentially ruinous liability under the DMCA’s enhanced statutory damages.”
  • Much was at stake in this appeal for the broader AI ecosystem. Several plaintiffs have brought CMI removal claims in cases challenging LLMs. This ruling provides important clarifications and limitations that will impact the wave of AI-related copyright litigation currently working its way through the federal courts.

The Orrick team representing Microsoft and GitHub is led by Annette Hurst and Chris Cariello (who argued the appeal), along with Alyssa Caridis, Geoffrey Shaw, Jonas Wang and Nicholas Gonzalez.