DOE 1 v. GitHub, Inc. — Entry #296: OPINION of USCA as to 286 USCA Case Number 24-7700

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                           FOR PUBLICATION

            UNITED STATES COURT OF APPEALS
                 FOR THE NINTH CIRCUIT

         J. DOE, 1; J. DOE, 2-5, individually        No. 24-7700
         and on behalf of all others similarly
                                                       D.C. No.
         situated,
                                                    4:22-cv-06823-
                                                          JST
                      Plaintiffs - Appellants,

           v.                                         OPINION

         GITHUB, INC., a Delaware
         corporation; MICROSOFT
         CORPORATION, a Washington
         corporation; OPENAI, INC., a
         Delaware nonprofit corporation;
         OPENAI, LP, a Delaware limited
         partnership; OPENAI GP, LLC, a
         Delaware limited liability company;
         OPENAI STARTUP FUND GP I,
         LLC, a Delaware limited liability
         company; OPENAI STARTUP
         FUND I, LP, a Delaware limited
         partnership; OPENAI STARTUP
         FUND MANAGEMENT, LLC, a
         Delaware limited liability company;
         OPENAI OPCO, LLC; OPENAI,
         LLC; OPENAI GLOBAL, LLC; OAI
         CORPORATION; OPENAI
         HOLDINGS, LLC; OPENAI


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         2                       DOE V. GITHUB, INC.


         HOLDCO, LLC; OPENAI
         INVESTMENT; OPENAI
         STARTUP FUND SPV I, LP;
         OPENAI STARTUP FUND SPV GP
         I, LLC,

                        Defendants - Appellees.

                 Appeal from the United States District Court
                   for the Northern District of California
                   Jon S. Tigar, District Judge, Presiding

                   Argued and Submitted February 11, 2026
                          San Francisco, California

                            Filed September 16, 2026

             Before: Sidney R. Thomas and Eric D. Miller, Circuit
             Judges, and Stanley Blumenfeld, Jr., District Judge.*

                             Opinion by Judge Miller


         *
           The Honorable Stanley Blumenfeld, Jr., United States District Judge
         for the Central District of California, sitting by designation.


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                                   SUMMARY**


                      Digital Millennium Copyright Act

             In an interlocutory appeal pursuant to 28 U.S.C.
         § 1292(b), the panel affirmed the district court’s dismissal of
         part of an action brought under the Digital Millennium
         Copyright Act (“DMCA”) by programmers against GitHub,
         Inc., and other defendants.
             GitHub is a platform that allows developers to store,
         manage, and share their code. GitHub Copilot and Codex
         are tools that help programmers write code using artificial
         intelligence—specifically, large language models that were
         trained on millions of software projects on GitHub.
         Plaintiffs alleged that Copilot and Codex reproduced their
         code without attribution in violation of 18 U.S.C. § 1202(b),
         a provision of the DMCA.
             The panel concluded that plaintiffs had Article III
         standing to bring their DMCA claim because they plausibly
         alleged a substantial risk of injury.
             The panel nonetheless held that plaintiffs did not state a
         claim under the DMCA because their allegations under an
         “output” theory showed that Copilot and Codex do not
         “remove or alter” copyright management information from
         a copy of an existing protected work but instead create new
         works that never contained that information.


         **
           This summary constitutes no part of the opinion of the court. It has
         been prepared by court staff for the convenience of the reader.


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             The panel declined to consider, as forfeited, plaintiffs’
         “input” theory of DMCA liability.


                                 COUNSEL

         Jesse Panuccio (argued), Daniel Morales, and Evan M.
         Ezray, Boies Schiller Flexner LLP, Fort Lauderdale, Florida;
         Joshua M. Stein, Maxwell V. Pritt, and Margaux
         Poueymirou, Boies Schiller Flexner LLP, San Francisco,
         California; Matthew Butterick, Butterick Law PC, Los
         Angeles, California; Joseph R. Saveri, Christopher K.L.
         Young, William W.C. Guardado, and Evan Creutz, Saveri
         Law Firm LLP, San Francisco, California; for Plaintiffs-
         Appellants.
         Lisa S. Blatt (argued), Erin M. Sielaff, Claire R. Cahill,
         Thomas G. Hentoff, and Claire L. Lazar, Williams &
         Connolly LLP, Washington, D.C.; Christopher J. Cariello
         (argued), Orrick Herrington & Sutcliffe LLP, New York,
         New York; Alyssa M. Caridis, and Geoffrey C. Shaw, Orrick
         Herrington & Sutcliffe LLP, Los Angeles, California; Jonas
         Q. Wang, Orrick Herrington & Sutcliffe LLP, Washington,
         D.C.; Nicholas Gonzalez and Annette L. Hurst, Orrick
         Herrington & Sutcliffe LLP, San Francisco, California;
         Aileen McGrath, Joseph C. Gratz, and Tiffany Cheung,
         Morrison & Foerster LLP, San Francisco, California; John
         R. Lanham, Morrison & Foerster LLP, San Diego,
         California; for Defendants-Appellees.
         Brian Scarpelli and Priya Nair, ACT The App Association,
         Washington, D.C., for Amicus Curiae ACT The App
         Association.


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         Paul N. Harold, Wilson Sonsini Goodrich & Rosati PC,
         Washington, D.C., for Amici Curiae Chamber of Progress
         and Computer & Communications Industry Association.
         Robert W. Clarida, Reitler Kailas & Rosenblatt LLP, New
         York, New York, for Amici Curiae The Authors Guild Inc.,
         The Association of American Publishers, The News/Media
         Alliance, and The International Association of Scientific
         Technical and Medical Publishers.
         Corynne McSherry and Victoria Noble, Electronic Frontier
         Foundation, San Francisco, California, for Amici Curiae
         Electronic Frontier Foundation and Public Knowledge.
         Christopher Bavitz, Cyberlaw Clinic, Harvard Law School,
         Cambridge, Massachusetts, for Amicus Curiae Authors
         Alliance.
         Jennifer M. Urban and Erik Stallman, Samuelson Law
         Technology & Public Policy Clinic, University of California
         at Berkeley School of Law, Berkeley, California, for Amici
         Curiae Intellectual Property Law Professors.


                                 OPINION

         MILLER, Circuit Judge:

              GitHub is a platform that allows developers to store,
         manage, and share their code. GitHub Copilot (Copilot) and
         Codex are tools that help programmers write code using
         artificial intelligence—specifically, large language models
         that were trained on millions of software projects on GitHub.
         Plaintiffs are programmers who published open-source code
         on GitHub. They believe that Copilot and Codex may


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         reproduce their code without attribution and allege that, were
         that to happen, it would violate 17 U.S.C. § 1202(b), enacted
         as part of the Digital Millennium Copyright Act (DMCA),
         Pub. L. No. 105-304, § 103, 112 Stat. 2860, 2872 (1998).
         Plaintiffs brought this action under the DMCA, and the
         district court dismissed plaintiffs’ DMCA claims. We agree
         with the district court that plaintiffs do not state a claim
         under the DMCA because their allegations show that Copilot
         and Codex do not “remove or alter” copyright management
         information (CMI) from a copy of an existing protected
         work but instead create new works that never contained that
         information. See 17 U.S.C. § 1202(b)(1). We therefore
         affirm.
                                        I
             Microsoft owns and operates GitHub, which is the
         world’s largest hosting service for open-source software—
         that is, software whose creators choose to make its source
         code publicly available. Much of the code in public
         repositories on GitHub is made available under open-source
         licenses that permit other developers to use or modify that
         code subject to certain conditions. One of the most common
         conditions is attribution, meaning that a copy of the
         license—including the author’s name and copyright
         notice—must be included with any copy or derivative of the
         code.
             Microsoft is also a major investor in OpenAI, a company
         that develops and sells artificial intelligence models. One of
         OpenAI’s projects is Codex, a generative AI tool that works
         autonomously to draft code based on a programmer’s
         prompts. Copilot is a paid subscription service jointly
         developed by GitHub and OpenAI that uses a modified
         version of Codex to produce blocks of code in response to a


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         user’s prompts. In all respects relevant to this case, Codex
         and Copilot function similarly, so for simplicity, we will
         refer solely to Copilot.
             As described in the complaint, Copilot is a large
         language model that works by identifying statistical patterns
         in the structure of code. The model relies on those patterns
         to identify the “most statistically likely completion, based on
         the examples it reviewed in training,” to a particular prompt
         or snippet of code. To identify relevant statistical patterns,
         Copilot was trained on billions of lines of publicly available
         code, including code from “all available public GitHub
         repositories.”
             Plaintiffs are programmers who have published
         copyrighted code, subject to various licenses, on public
         GitHub repositories. They brought this putative class action
         against GitHub, Microsoft, and OpenAI in the Northern
         District of California. After two rounds of dismissals and
         amendments, the complaint has been whittled down to three
         claims: one claim under the DMCA and two claims for
         breach of contract.
             Plaintiffs’ DMCA claim rests on their allegation that
         Copilot will sometimes produce “identical copies of code
         Copilot was trained on,” a possibility that “is only increasing
         as the model scales.” The operative complaint includes
         examples of cases in which Copilot reproduced “essentially
         verbatim” copies of code written by the proposed class
         representatives. Plaintiffs allege that when Copilot
         reproduces code from its training materials, it does not
         include the attribution, copyright notices, or other license
         terms that were included with the code when it was
         published on GitHub. Plaintiffs claim that this omission
         violates section 1202(b) of the DMCA.


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             “In enacting the DMCA, Congress sought to mitigate the
         problems presented by copyright enforcement in the digital
         age.” MDY Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928,
         942 (9th Cir. 2010) (citing Universal City Studios, Inc. v.
         Corley, 273 F.3d 429, 440 (2d Cir. 2001)). As relevant here,
         section 1202 makes it unlawful to (1) “intentionally remove
         or alter any [CMI],” (2) “distribute or import for distribution
         [CMI] knowing that the [CMI] has been removed or altered
         without authority of the copyright owner or the law,” or
         (3) “distribute, import for distribution, or publicly perform
         works, copies of works, or phonorecords, knowing that
         [CMI] has been removed or altered without authority of the
         copyright owner or the law.” 17 U.S.C. § 1202(b). The
         DMCA defines CMI as certain “information conveyed in
         connection with copies . . . of a work,” including “[t]he title
         and other information identifying the work, including the
         information set forth on a notice of copyright,” “[t]he name
         of, and other identifying information about, the author” or
         “the copyright owner of the work,” and the “[t]erms and
         conditions for use of the work.” Id. § 1202(c). The DMCA
         does not require works to include CMI or prescribe the
         particular types of CMI that may be used. But if a work does
         contain CMI, section 1202(b) protects that CMI from
         deliberate removal or alteration.
             The district court dismissed the DMCA claim under
         Federal Rule of Civil Procedure 12(b)(6), first with leave to
         amend, and then with prejudice. The court reasoned “that
         Section 1202(b) claims require that copies be ‘identical.’” It
         emphasized plaintiffs’ allegations that Copilot’s output is
         often a “near-identical copy” or “modified copy” of code on
         GitHub, explaining that the complaint’s examples all
         involved instances in which “the Copilot output is a
         ‘modified format,’ ‘variation[],’ or the ‘functional[]


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         equivalent’ of the licensed code.” The court concluded that
         those allegations were not sufficient to state a claim under
         the DMCA because plaintiffs’ code and Copilot’s output
         “were not identical.” The court denied a motion to dismiss
         the contract claims, which remain pending.
             The district court certified its order dismissing the
         section 1202(b) claims for interlocutory appeal under 28
         U.S.C. § 1292(b). The court held that “whether Sections
         1202(b)(1) and (b)(3) of the DMCA impose an identicality
         requirement” is a controlling question of law on which there
         is substantial ground for difference of opinion.
             We review de novo the district court’s grant of a motion
         to dismiss. Wells Fargo Bank, N.A. v. Mahogany Meadows
         Ave. Tr., 979 F.3d 1209, 1213 (9th Cir. 2020). “To survive a
         motion to dismiss, a complaint must contain sufficient
         factual matter, accepted as true, to ‘state a claim to relief that
         is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
         678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
         544, 570 (2007)).
                                         II
             Plaintiffs have articulated two different theories of
         DMCA violations. The first, which we will call the “input”
         theory, is that defendants violated section 1202(b)(1) at the
         training stage by removing CMI from putative class
         members’ code before feeding the stripped code into Copilot
         as training data. The second, which we will call the “output”
         theory, is that Copilot sometimes returns memorized training
         data as output to users without including the source code’s
         CMI, and that in doing so Copilot “remove[s]” or “alter[s]”
         CMI on copies of plaintiffs’ protected work, in violation of
         section 1202(b)(1) and (3).


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              We decline to consider the input theory because
          plaintiffs forfeited it. Read in isolation, the complaint might
          be understood to assert such a theory. For example, the
          complaint alleges that “Defendants removed or altered CMI
          from open-source code that is owned by Class members after
          the code was uploaded to a GitHub repository by
          incorporating it into Copilot with its CMI removed.” But
          although plaintiffs at times gestured toward an input theory,
          the district court made clear that it did not understand
          plaintiffs to have asserted a claim based on that theory. At
          the hearing on defendants’ first motion to dismiss, the court
          asked whether the act of copying training data into Copilot
          violated the attribution requirement of open-source licenses,
          and plaintiffs’ counsel answered, “Perhaps it doesn’t.” The
          court then observed that the “complaint is not about training.
          It just isn’t.” And in the district court’s subsequent order
          granting in part defendants’ motion to dismiss plaintiffs’ first
          complaint, the court stated unequivocally: “Plaintiffs do not
          allege they were injured by Defendants’ use of licensed code
          as training data.”
              If plaintiffs believed that the district court misunderstood
          their position, it was incumbent upon them to say so. But
          plaintiffs did not do so, either orally or in writing. In arguing
          that they preserved an input theory, plaintiffs point only to
          their statement that “[t]he DMCA makes the mere removal
          of CMI from digital copies illegal before distribution of
          copies” and to one of OpenAI’s filings, in which OpenAI
          purportedly acknowledged that plaintiffs advanced a claim
          based on “the pre-distribution removal of CMI.” Plaintiffs’
          statement was part of their explanation of the distinction
          between section 1202(b)(1) and section 1202(b)(3) and did
          not suggest disagreement with the district court’s conclusion
          that the complaint did not advance an input theory. And the


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          cited OpenAI filing argued that plaintiffs’ second amended
          complaint “admits that no pre-distribution [CMI] removal
          occurred” and does not allege any claim based on a pre-
          distribution removal theory. Plaintiffs have identified
          nothing in their district court briefing after the first motion
          to dismiss that would have put the court on notice that they
          wished to pursue an input theory. We therefore conclude that
          plaintiffs forfeited the theory.
                                        III
              As to the output theory, defendants argue that plaintiffs
          lack standing because they did not adequately allege that
          their code will be subject to copying by Copilot without
          reproduction of the accompanying CMI. The district court
          did not address standing in its order granting the motion to
          dismiss, and the question certified for appeal does not
          discuss standing. But our jurisdiction under section 1292(b)
          “applies to the order certified to the court of appeals, and is
          not tied to the particular question formulated by the district
          court.” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
          199, 205 (1996). We therefore “may address any issue fairly
          included within the certified order.” Id. That includes the
          question of standing. Although that question was “not
          expressly certified,” the district court had addressed it in an
          earlier order, and it is “fairly raised by the order under
          review.” Lee v. American Nat’l Ins. Co., 260 F.3d 997, 1001
          (9th Cir. 2001).
              To establish Article III standing, a plaintiff must show,
          among other things, that it faces an injury in fact—that is,
          “an invasion of a legally protected interest which is
          (a) concrete and particularized and (b) actual or imminent,
          not conjectural or hypothetical.” Lujan v. Defenders of
          Wildlife, 504 U.S. 555, 560 (1992) (citation, internal


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          quotation marks, and footnote omitted). “An allegation of
          future injury” can establish standing if “there is a substantial
          risk that the harm will occur.” Susan B. Anthony List v.
          Driehaus, 573 U.S. 149, 158 (2014) (citation and internal
          quotation marks omitted). Allegations of standing “must be
          supported in the same way as any other matter on which the
          plaintiff bears the burden of proof, i.e., with the manner and
          degree of evidence required at the successive stages of the
          litigation.” Lujan, 504 U.S. at 561. “At the pleading stage,
          general factual allegations of injury resulting from the
          defendant’s conduct may suffice” because courts must
          “presum[e] that general allegations embrace those specific
          facts that are necessary to support the claim.” Id. (quoting
          Lujan v. National Wildlife Fed’n, 497 U.S. 871, 889 (1990)).
              According to defendants, even if Copilot makes copies
          of code without CMI, the risk that it will reproduce
          plaintiffs’ code—rather than the code of some other GitHub
          contributor—is “no more than conjecture.” City of Los
          Angeles v. Lyons, 461 U.S. 95, 108 (1983). We disagree. The
          complaint alleges a substantial risk of injury because it states
          that “Copilot reproduces the code of the Named Plaintiffs
          without attribution,” “that many if not all prompts entered
          into Copilot will readily cause it to emit verbatim, near-
          verbatim, or modified copies of Licensed Material that
          violate the licenses under which the source code is
          published,” that “[i]t is therefore likely if not certain that
          verbatim, near-verbatim or modified copies of each
          Plaintiff[’s] code have already been emitted by Copilot,” and
          that “each day these violations must be accruing with
          astonishing frequency.”
             Of course, a complaint must “contain sufficient factual
          matter” to make the stated allegations plausible. Iqbal, 556
          U.S. at 678. But the complaint here meets that standard. The


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          complaint cites academic research finding that large
          language models will sometimes “emit the memorized
          training data verbatim,” a phenomenon that “will likely get
          worse as models continue[] to scale.” The complaint notes
          that GitHub has implemented a duplicate-detection feature
          that allows users to block output suggestions matching
          public code—specifically, verbatim snippets of 150
          characters or more—which is some evidence that Copilot
          can and does emit literally identical copies of code. And the
          complaint also provides examples of cases in which Copilot
          reproduced portions of the named plaintiffs’ code verbatim.
              If this case were to proceed to summary judgment,
          plaintiffs would need to present evidence sufficient to create
          a genuine factual issue as to whether they face a “substantial
          risk” of harm. Susan B. Anthony List, 573 U.S. at 158. We
          need not determine whether the evidence referred to in the
          complaint would be sufficient to meet that standard. But the
          factual allegations in the complaint make it plausible that
          plaintiffs face a substantial risk, and that is enough to survive
          a motion to dismiss.
                                         IV
              Turning to the merits of the output theory, we agree with
          the district court that the complaint does not state a claim
          under the DMCA. The complaint describes an AI tool that
          does not look up and reproduce stored work but rather
          creates new work. That new work may or may not infringe
          plaintiffs’ copyrights in their code, but it cannot reasonably
          be described as a copy of that code from which CMI has been
          “removed” or “altered.”
              “[W]e start where we always do: with the text of the
          statute.” Van Buren v. United States, 593 U.S. 374, 381
          (2021). Section 1202(b) provides that “[n]o person shall,


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          without the authority of the copyright owner or the law,”
          “intentionally remove or alter any copyright management
          information” or “distribute . . . works [or] copies of works,
          . . . knowing that copyright management information has
          been removed or altered without authority of the copyright
          owner or the law.” 17 U.S.C. § 1202(b)(1), (3). The verb
          “remove” means “to get rid of,” while “alter” means “to
          cause to become different in some particular characteristic.”
          Webster’s Third New International Dictionary 63, 1921
          (1993). In context, both verbs imply taking an affirmative
          act with respect to CMI connected to a work that already
          exists. See, e.g., 4 Nimmer on Copyright § 12A.10[B][1][a]
          (2026) (citing “defacing . . . the title page of a book” or
          “delet[ing] the electronic information that may accompany a
          computer file” as paradigmatic section 1202(b) violations).
          One who creates a new work and fails to include CMI cannot
          be said to have “removed” or “altered” anything. See
          Falkner v. General Motors LLC, 393 F. Supp. 3d 927, 938
          (C.D. Cal. 2018) (explaining that mere “failure to include”
          CMI does not “constitute[] removal or alteration” of CMI);
          accord Kipp Flores Architects, LLC v. AMH Creekside Dev.,
          LLC, No. 23-50750, 2026 WL 2453096, at *13–17 (5th Cir.
          Aug. 21, 2026) (opinion of Willett, J.). Instead, removal or
          alteration requires taking away or changing attribution
          information from an existing work.
              The statutory definition of CMI reinforces this reading.
          CMI is “information conveyed in connection with copies . . .
          of a work,” not in connection with excerpts or derivative
          works. 17 U.S.C. § 1202(c) (emphasis added). A “copy” of
          a work is a “material object[] . . . in which a work is fixed,”
          id. § 101, so CMI is information that exists in connection
          with those material objects. Violating section 1202(b)
          requires removing or altering the CMI on those material


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          objects, such as by reprinting an image while cropping out
          the “printed gutter credit near the [i]mage” identifying the
          photographer. Murphy v. Millennium Radio Grp., 650 F.3d
          295, 305 (3d Cir. 2011); see also Falkner, 393 F. Supp. 3d
          at 938–39 (photographer did not remove or alter CMI when
          he photographed a mural from an angle that rendered the
          artist’s signature not visible). To state a claim under section
          1202, plaintiffs must therefore allege that defendants
          removed or altered CMI from copies of existing protected
          works; merely alleging that a similar or derivative work does
          not include the CMI, without facts showing its removal or
          alteration, is insufficient.
              The district court and defendants characterize this
          principle as the DMCA’s “identicality” requirement. But
          “identicality” is something of a misnomer because the
          DMCA does not require literal identicality between the
          plaintiff’s work and the allegedly infringing work. The
          concept of “identicality” is best understood as a gloss on the
          statutory terms “remove,” “alter,” and “copies” rather than
          an independent (and atextual) element of a section 1202(b)
          claim.
              To the extent identicality is relevant, it is because one
          way to determine whether CMI has been “remove[d]” from
          a copyrighted work is to compare the allegedly infringing
          copy with the original. If the two works are otherwise
          identical—sharing, for example, the same composition,
          cropping, or other distinctive features—but the allegedly
          infringing version omits the CMI that accompanied the
          original, a factfinder may reasonably infer that the defendant
          removed CMI from the copied work. We relied on just such
          a comparison in Friedman v. Live Nation Merchandise, Inc.,
          where we held that because the allegedly infringing
          photographs were “exact copies” of the images as they


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          appeared in the copyright owner’s book, and “[b]ecause the
          only material difference” in the allegedly infringing versions
          “was that the CMI was missing, it was necessarily the case
          that the CMI had been removed on the copied version.” 833
          F.3d 1180, 1188 (9th Cir. 2016). Although substantial
          reproduction of a plaintiff’s existing work without CMI is
          not always dispositive, it will often be strong circumstantial
          evidence that the defendant removed CMI from a copy of the
          plaintiff’s work. On the other hand, material differences
          between the works may suggest that the defendant instead
          created a new, derivative work to which the plaintiff’s CMI
          was never attached and from which the defendant could not
          have “removed” or “altered” CMI.
              Plaintiffs observe that requiring literal identicality would
          make it easy to circumvent the DMCA: So long as the
          defendant changed one word on one page of a book, in
          addition to deleting the CMI, that person would avoid
          violating section 1202(b) because the original and allegedly
          infringing versions would not be identical. But as defendants
          concede, the two works need not be literally identical to
          support an inference that CMI has been removed. See Real
          World Media LLC v. Daily Caller, Inc., 744 F. Supp. 3d 24,
          40 (D.D.C. 2024) (“[I]t would be odd if a defendant could
          evade DMCA liability by removing or altering CMI in a
          copied work but only disseminating 99% rather than 100%
          of that work.”). Minor cosmetic changes will not necessarily
          protect a defendant who substantially or entirely reproduces
          the protected work and removes CMI. See New York Times
          Co. v. Microsoft Corp., 777 F. Supp. 3d 283, 317 (S.D.N.Y.
          2025).
             But that concession does not help plaintiffs because they
          have not alleged removal of CMI from a copy of their work,
          even one with minor alterations. In reaching that conclusion,


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          we recognize the limitation of relying on examples involving
          traditional print media, such as when a defendant has
          “defac[ed] . . . the title page of a book,” 4 Nimmer on
          Copyright § 12A.10[B][1][a] (2026). While such examples
          may provide a useful starting point for reasoning by analogy,
          they do not map neatly onto the emerging digital
          technologies like artificial intelligence to which the
          DMCA’s protections also apply. Even so, plaintiffs’ own
          allegations about Copilot show that it is best understood as
          learning from existing works and then creating new works
          based on that learning process, not as making copies of
          existing works.
              According to the complaint, Copilot relies on a “complex
          probabilistic process” to predict “the most likely solution to
          a given prompt,” based on “the solution it has found in the
          most projects” answering similar questions. Sometimes,
          plaintiffs allege, that output may match snippets of “code
          from the training data.” But their account of the algorithm’s
          internal process—inferring “statistical patterns governing
          the structure of code” and identifying the most likely
          completion—does not describe an action taken with respect
          to CMI attached to an existing work. Instead, it describes a
          process through which Copilot generates new works. In that
          respect, it differs from a traditional search engine, which, in
          response to a user’s query, retrieves and displays stored
          information—that is, copies of materials that already exist.
          If Copilot functioned like a search engine and produced
          outputs that were identical to plaintiffs’ code but did not
          contain CMI, then plaintiffs might have a stronger claim that
          Copilot had removed their CMI. But that is not what
          plaintiffs have alleged.
             To be sure, Copilot’s output may in some cases be
          substantially similar to existing code. As the district court


Case 4:22-cv-06823-JST       Document 296         Filed 09/16/26      Page 18 of 1
          18                    DOE V. GITHUB, INC.


          observed, Copilot may produce “a ‘modified format,’
          ‘variation[],’ or the ‘functional[] equivalent’ of the licensed
          code” without the CMI. We express no view on whether that
          similarity would allow plaintiffs to assert a claim for
          copyright infringement. But we note that many copyright
          cases involve the creation of a work that is substantially
          similar to the plaintiff’s without attribution. See Yonay v.
          Paramount Pictures Corp., 163 F.4th 685, 692 (9th Cir.
          2026) (“To show unlawful appropriation,” a plaintiff must
          show “that the works in question share ‘substantial similarity
          in protectable expression.’” (emphasis omitted) (quoting
          Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin,
          952 F.3d 1051, 1064 (9th Cir. 2020) (en banc))). If that were
          all it took to violate section 1202(b), the DMCA would
          supplant traditional copyright protections and subject
          defendants to potentially ruinous liability under the
          DMCA’s enhanced statutory damages. Compare 17 U.S.C.
          § 1203(c)(3) (permitting up to $25,000 per violation) with
          17 U.S.C. § 504(c)(1) (capping traditional copyright
          statutory damages at $30,000 per work). We decline
          plaintiffs’ invitation to transform run-of-the-mill copyright-
          infringement claims into DMCA claims.
               AFFIRMED.