Ninth Circuit Issues Decision in Major DMCA AI Case

Plaintiffs who believe their work is improperly used in AI training are testing various legal theories against AI companies. The Ninth Circuit Court of Appeals recently heard one such case, after the trial court dismissed some of the plaintiffs’ claims. In this case, plaintiffs attempted to bring claims under the Digital Millennium Copyright Act (DMCA). The DMCA is commonly used to enforce copyrights in digital spaces. However, this Ninth Circuit decision found the DMCA claims inapplicable to AI training. A recent Sheppard memo summarizes the court’s ruling:

“The issues centered on whether defendants removed copyright management information (CMI) from content used to train the AI code generator models. The Ninth Circuit Stated: ‘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.’ It added that it declines plaintiffs’ invitation to ‘transform run-of-the-mill copyright infringement claims into DMCA claims.’ This is a very significant ruling. Had it gone the other way, it would have opened the floodgates to a wave of litigation on this issue.”

Plaintiffs like the DMCA because of its ease of use. Plaintiffs don’t need to prove the traditional elements of a copyright infringement claim, only that the defendant removed CMI from their content. This ruling doesn’t preclude other types of copyright claims. The memo also notes that other theories under the DMCA may be viable. The decision means that, for now, the DMCA is not the breakout theory plaintiffs were hoping for.