TL;DR:
The Ninth Circuit on September 16, 2026, affirmed the district court’s dismissal of DMCA Section 1202 claims against GitHub, Microsoft, and OpenAI concerning AI-generated outputs. The court held that the output produced by AI tools is a newly generated work, not a “copy” of training data, and that a reduction or removal of copyright management information (CMI) from an output cannot be said to have occurred under Section 1202(b) because generated outputs do not carry or remove CMI from a preexisting copyrighted work. For trial teams, this narrows reliance on DMCA 1202 as a tool to police AI outputs or compel disclosures tied to training data. Instead, litigation strategy should pivot to traditional copyright, contract, or trade-secret theories for challenges to AI-driven content, with careful attention to authentication, chain of custody, and the origin of AI-produced materials. The decision also intersects with ongoing federal court modernization efforts that will affect how evidence is managed and disclosed, as discussed in the Judicial Conference’s September 17, 2026 update on CM/ECF modernization and AI guidance.
Overview of the Doe v. GitHub decision
Doe v. GitHub, Inc., No. 24-7700 (9th Cir. Sept. 16, 2026) concerns DMCA Section 1202 claims premised on alleged removal of copyright management information from AI-generated outputs. The Ninth Circuit affirmed dismissal of the DMCA claims, clarifying that outputs produced by AI tools such as Copilot are not literal copies of training data and therefore do not involve the removal of CMI from a preexisting work in the manner Section 1202(b) contemplates. The court treated the outputs as newly generated works rather than copies, which undermines the theory that the training data’s CMI was removed from a “work” in the sense required by DMCA 1202. The decision is a meaningful procedural boundary in AI-litigated disputes, particularly for claims predicated on metadata or attribution removals tied to training data.
The Ninth Circuit’s reasoning emphasizes two core points: first, that a generated output is not a faithful copy of any single training dataset, but rather an emergent product created by the model; second, that the DMCA’s focus on removing CMI from a copy does not squarely apply to outputs that originate as new works. The opinion traces the statutory text and the nature of AI-generated content to conclude that Section 1202(b) claims fail as a matter of law at the pleadings or summary-judgment stage when the alleged wrongdoing is the generation of new content rather than the alteration of a particular copy of a work. The opinion can be found in full in the CA9 PDF of the decision, and a contemporaneous overview is available from Justia. (cdn.ca9.uscourts.gov)
Practical impact for trial teams
- Do not rely on DMCA 1202 as a discovery or admissibility lever for AI-generated outputs. The Ninth Circuit’s ruling narrows the scope of 1202 claims in AI contexts by distinguishing outputs from preexisting copies, which limits the actionable leverage of CMI-removal theories against AI-produced material. Although DMCA 1202 remains a tool in appropriate copyright disputes, its applicability to the outputs of generative AI is now clearly constrained in this circuit. (cdn.ca9.uscourts.gov)
- Reassess discovery playbooks for AI-driven evidence. Counsel should prepare to address the origin of AI-generated content through traditional routes (copyright ownership, licensing terms, contract rights, or misappropriation theories) rather than through DMCA 1202 metadata claims. Ensure that any AI-generated exhibits are authenticated as outputs of a particular tool, with a clear provenance and record of prompts where permissible. (law.justia.com)
- Authentication and chain of custody for AI outputs. Given that the content is generated, litigants should document source tools, versions, and prompts used to create outputs that appear as exhibits. This supports reliability and helps withstand challenges to accuracy or authenticity at trial. Objection handling and evidence readiness training can benefit from targeted practice on AI-origin authentication, where Objection Academy’s resources on trial objections and evidence readiness can be leveraged in internal moot-court and trial-team drills. (objectionacademy.com)
- Strategic shift toward traditional remedies. If a party believes AI-generated content infringes a right or is misappropriated, pursue direct copyright claims, contract-based remedies, or trade-secret theories where appropriate, rather than DMCA 1202 procedural objections. This aligns with the Ninth Circuit’s decision and keeps litigation focused on substantive rights rather than metadata theory. (cdn.ca9.uscourts.gov)
- Prepare for broader AI policy and technology changes in the courtroom. The Doe v. GitHub decision arrives as federal courts accelerate modernization of case-management infrastructure and issue formal AI-use guidance. Expect ongoing developments in discovery workflows, document handling, and exhibit preparation as CM/ECF transitions accelerate and AI policy becomes more formal across the judiciary. (uscourts.gov)
Discovery, authentication, and evidence handling in light of the decision
- Create a robust record for AI-assisted outputs. Include tool name, version, date, prompts (where permissible), and any post-processing to demonstrate the output’s status as a new work. This helps with admissibility and credibility, particularly when the court will scrutinize the reliability of AI-generated materials.
- Use targeted interrogatories and requests for production to identify the sources of training data and licensing terms where relevant to the case, but avoid overextending DMCA 1202 claims in light of the Ninth Circuit’s ruling. Frame requests to elicit information necessary to address ownership, license rights, and the permissible use of AI tools rather than relying on CMI-removal theories.
- Leverage objections and trial-readiness training. Objection Academy offers practical drills for handling objections to AI-generated evidence and other technologically mediated disputes. Incorporating these drills into trial-team training can sharpen responses to common AI-related evidentiary challenges. (objectionacademy.com)
Broader federal judiciary developments affecting trial practice this month
On September 17, 2026, the Judicial Conference outlined concrete steps to modernize the federal judiciary’s case-management backbone, including the transition from NextGen CM/ECF to a Case Management Modernization platform, expansion of Real Property Authority for courthouse operations, and formal guidance on the use of artificial intelligence in court operations. The update signals a tangible shift in how courts manage filings, access, and internal workflows, with direct implications for trial teams in terms of filing practices, document handling, and faster, more secure access to case materials. For litigants, this means potential changes to how trial teams coordinate with court staff, upload and retrieve exhibits, and manage ongoing discovery. (uscourts.gov)
Takeaways and practical next steps for your trial team
- Monitor ongoing AI policy developments and CM/ECF modernization timelines. Set internal milestones for updating case-management workflows and exhibit preparation to align with the federal judiciary’s modernization schedule. (uscourts.gov)
- Integrate AI-origin training into objections and evidentiary practice. Use Objection Academy’s resources to build objection-ready scripts and drill authentic IA-based objections, ensuring trial teams are prepared to address AI-generated content in real time during hearings. (objectionacademy.com)
- Reframe discovery strategies around substantive rights rather than metadata compliance. While DMCA 1202 claims may arise in other contexts, the Doe v. GitHub decision cautions against overreliance on CMI-removal theories for AI-generated outputs. Focus on ownership, licensing, and misappropriation claims where applicable. (cdn.ca9.uscourts.gov)
Sources
- Doe v. GitHub, Inc., No. 24-7700 (9th Cir. Sept. 16, 2026) (PDF) (cdn.ca9.uscourts.gov)
- Doe v. GitHub, Inc. – Justia summary (Sept. 2026) (law.justia.com)
- Judicial Conference News Release: “Judiciary Cites Progress on Case Management, Property Authority, and AI” (Sept. 17, 2026) (uscourts.gov)
- USCourt.gov: Judicial Conference News Releases – page with Sept 17 2026 updates (for context on CM/ECF modernization and AI guidance) (uscourts.gov)
- Objection Academy: “Federal Judiciary Advances Case Management Modernization and AI Policy in September 2026” (Sept. 2026) (objectionacademy.com)
- Objection Academy: “Federal Judiciary Announces Concrete CM/ECF Modernization Milestones and AI Guidance” (Sept. 2026) (objectionacademy.com)