Ninth Circuit Finds LLM Coding Agent Outputs Did Not Violate Digital Millenium Copyright Act By Not Including Attribution

In Doe v. GitHub, Inc., No. 24-7700 (9th Cir. Sept. 16, 2026) the United States Court of Appeals for the Ninth Circuit, on interlocutory appeal, affirmed a district court dismissal of claims under the DMCA related to LLM-based coding tools trained on open-source code.

GitHub Copilot and Codex are LLM-based tools that can write code. Among the materials on which these LLMs were trained were open-source software projects that were published on GitHub. The plaintiffs are a class of programmers who published copyrighted code on public GitHub repositories.

Section 1202 of the DMCA makes it unlawful to intentionally remove or alter CMI from copyrighted works, or to distribute works with removed or altered CMI. In this case, the plaintiffs asserted that the defendants violated the DMCA in two different ways. First, they argued that defendants removed the CMI from their copyrighted code prior to training the LLMs and that this violated the DMCA (the “input” theory). Second, they argued