Ninth and Fifth Circuits Reject Expansive DMCA Section 1202 Claims Against AI Code Models and Web Hyperlinks

Two federal appellate courts issued landmark digital copyright rulings this week, rejecting attempts by litigants to stretch the Digital Millennium Copyright Act (DMCA) to penalize generative AI code synthesis and standard web hyperlinking. In San Francisco, the U.S. Court of Appeals for the Ninth Circuit ruled from its Seventh Street courthouse that Section 1202 of the DMCA does not prohibit artificial intelligence models from generating new software code that lacks copyright management information (CMI). Intellectual property committees, software engineering boards, and digital media publishers across San Francisco, Oakland, Walnut Creek, and Pleasanton welcomed the twin appellate clarifications.

The Ninth Circuit decision arose from a high-profile class-action lawsuit brought by anonymous GitHub open-source contributors against OpenAI and Microsoft over the training and output of large language coding models. The plaintiffs alleged that because AI-generated code snippets were similar to their repository code but omitted original license headers and author attributions, the AI companies violated DMCA Section 1202's ban on stripping copyright management information. Rejecting that theory, the Ninth Circuit appellate panel held that removing metadata from an existing work is fundamentally different from generating a new work that never contained CMI in the first place, though the plaintiffs' separate state-law contract claims remain active in district court.

Writing on the statutory architecture of the 1998 law, the Ninth Circuit emphasized that Section 1202 was enacted by Congress to serve as a targeted digital backstop for traditional copyright enforcement, not to create an expansive pseudo-copyright that inhibits otherwise non-infringing software tools. Meanwhile, in a parallel victory for open web architecture, the U.S. Court of Appeals for the Fifth Circuit rejected news publisher Emmerich Newspapers' claim that an aggregator website infringed copyrights and violated the DMCA simply by embedding hyperlinks to online articles.

In the Emmerich Newspapers ruling, the Fifth Circuit adopted a streamlined transmission-responsibility test—holding that a website cannot transmit a copyrighted work that it does not possess—and rejected the publisher's argument that URLs constitute protected DMCA copyright management information. San Francisco-based civil liberties group the Electronic Frontier Foundation (EFF) and allied public-interest organizations had filed an amicus brief urging the court to protect hyperlinking, noting that expansive DMCA liability could expose startups and newsrooms to $2,500-per-link statutory damages.

Technology general counsels, open-source maintainers, and legal scholars can download the published appellate opinions online at ca9.uscourts.gov and eff.org. Questions regarding Ninth Circuit oral argument calendars or court docketing records may be directed to the clerk's office at 95 Seventh Street in San Francisco or by calling (415) 355-8000 between 8:30 AM and 5:00 PM Monday through Friday.