October 15, 2024

DMCA Question Certified for Appellate Court in Action Involving Artificial Intelligence

3 min

On September 27, 2024, in J. Doe 1 v. Github, Inc., 22-cv-06823-JST, the U.S. District Court for the Northern District of California certified an order dismissing Plaintiffs' claims under Section 1202(b) of the Digital Millennium Copyright Act (DMCA). The court's order is notable, as it is one of the first issues certified by a district court for interlocutory appeal involving artificial intelligence (AI) technologies.

Among other claims, the plaintiffs in the action, software developers, raised a DMCA Section 1202(b) claim against defendants "regarding the development and operation of Copilot and Codex, two artificial intelligence-based coding tools."[1] Section 1202(b) of the DMCA pertains to prohibitions regarding copyright management information (CMI) (e.g., identifying information about the works author, title, etc.). Under Section 1202(b), "[n]o person shall, without the authority of the copyright owner or the law – (1) intentionally remove or alter any copyright management information, (2) distribute or import for distribution copyright management information knowing that the copyright management information 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 copyright management information has been removed or altered without authority of the copyright owner or the law, knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title."

The question of law certified for appeal is whether Sections 1202(b)(1) and (b)(3) of the DMCA impose an identicality requirement—an area of unsettled law to date. District courts have reached different conclusions regarding whether to interpret Sections 1202(b)(1) and (b)(3) as requiring the work alleged to have removed CMI to be identical to the original work. On one hand, U.S. District Courts for the Northern and Central Districts of California have applied an identicality standard, while, on the other hand, U.S. District Courts for the Southern District of Texas and Nevada have found identicality was not required for a Section 1202(b) claim.

While no appeal materials have been filed yet, if and/or when the appellate court decides whether identicality is required to establish a Section 1202(b) claim, it could have large ramifications for individuals and businesses involved with AI computer code generators, which have been used in software development. If identicality is not required to establish a Section 1202(b) claim, it is likely that AI vendors will have to make changes in how they process metadata, including CMI from AI training data sets, and outputs that use portions of copyrighted computer code, among other works, or run the risk of facing potential liability under Section 1202(b) for removal of CMI information.

If you have questions about the interaction of copyright and AI in this emerging technology space, contact Maria Sinatra or any professional on Venable's Intellectual Property team.


[1] See ECF 95 at *1 (court's order granting in part and denying in part motions to dismiss original complaint).