Section 1202 of the DMCA addresses the removal or alteration of copyright management information (CMI). Open AI and Microsoft incorporated code from Github in their language models. Anonymous Github contributors allege the models produce code similar to theirs without the original CMI. They do not claim copyright infringement but invoke Section 1202 instead. Courts maintain that Section 1202 pertains only to existing works with removed CMI. The Ninth Circuit's ruling may impact the right of attribution and could alter liability for non-infringing uses.
A group of anonymous Github contributors sued Open AI and Microsoft, claiming their LLMs generated new code snippets similar to theirs but stripped of copyright management information.
The generated code differs from the original work, and courts have adopted an 'identicality rule', stating Section 1202 applies only when CMI is removed from existing works.
The Ninth Circuit Court's decision on this matter could establish a freestanding right of attribution, affecting non-infringing uses like fair use if CMI is omitted.
The legal uncertainty surrounding DMCA Section 1202 could pressure defendants into settlements due to the high risk of statutory penalties.
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