In a recent World Trademark Review article, Knobbe Martens litigation partner Mark Lezama discussed the implications of the Ninth Circuit’s ruling for OpenAI and Microsoft in Doe v. Github, Inc.
The case centered on the application of the Digital Millennium Copyright Act (DMCA) to artificial intelligence systems that allegedly used probabilistic processes to output source code essentially identical to the plaintiffs’ code without attributing it to the plaintiffs. Under those allegations, the Ninth Circuit held that the generated code would constitute new works and that outputting the code therefore could not constitute removal or alteration of copyright management information under 17 U.S.C. § 1202(b).
Lezama maintained that AI companies would welcome the court’s ruling because it means that, to obtain statutory damages for § 1202(b) violations, “it’s not enough to show the model generates content substantially similar to the copyrighted work.” But Lezama maintained that a path remained for DMCA claims against AI systems in future copyright litigation.
Read the full article in World Trademark Review [subscription required].
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