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Is AI-Generated Code Copyright Infringement? (2026)

By Recording Law Editorial TeamReviewed August 9, 202614 min read
Is AI-Generated Code Copyright Infringement? (2026)

Frequently Asked Questions

Is code written by ChatGPT or Copilot copyrighted?

Purely AI-generated code generally is not copyrightable in the United States, because copyright requires human authorship (Thaler v. Perlmutter; U.S. Copyright Office, 2025). Code where a human made meaningful creative choices may be protected to the extent of that human contribution.

Can I get sued if an AI tool copied open-source code into my product?

Yes. Copyright infringement is strict liability under 17 U.S.C. § 501, so you can be liable even if you did not know. Innocent intent may reduce statutory damages to as low as $200 per work under § 504(c)(2), but it does not eliminate the claim.

Does 'open source' mean I can use the code however I want?

No. Open-source code is licensed copyright, not public domain. You must follow the license, which may require attribution (MIT, Apache 2.0) or that your derivative work also be released under the same open-source license (GPL, AGPL).

What is the AGPL network clause?

Under AGPL-3.0 section 13, if you modify the software and let users interact with it over a network, you must make the corresponding source available to those users, even if you never distribute the code as a download. This commonly affects software-as-a-service products.

Is copyright the same in every US state?

Yes. Copyright is exclusively federal under 17 U.S.C. § 301, so it does not vary by state. State law can still apply to related claims, such as trade-secret misappropriation or breach of a license contract.

Who is liable if Copilot suggests infringing code, me or GitHub?

Liability for shipping infringing output usually falls on the party that distributes it, which is typically the developer. Whether the tool vendor also shares liability is being litigated in Doe v. GitHub, currently on appeal to the Ninth Circuit.

If two companies use the same AI and get similar code, can one sue the other?

Generally no, because copyright does not bar independent creation (Feist v. Rural Telephone). A plaintiff must prove the other party actually copied its code, not merely that the two results look similar.

Can I copyright software I built mostly with AI?

Only the parts reflecting meaningful human authorship. The Copyright Office requires applicants to disclaim purely AI-generated material when registering (88 Fed. Reg. 16,190), and portions with no human creative input may be unprotectable.

Updates

Corrected the Doe v. GitHub Copilot litigation timeline: Judge Tigar dismissed the DMCA section 1202 claims with prejudice on June 24, 2024, not in September 2024 -- September 2024 is when he separately certified that ruling for interlocutory appeal to the Ninth Circuit. The identicality standard, surviving breach-of-contract/license claims, and the February 2026 Ninth Circuit argument with no decision yet were all confirmed accurate and left unchanged.

Governing law re-checked for recent changes

Sources and References

  1. 17 U.S.C. § 301 (federal preemption of state copyright law)(law.cornell.edu)
  2. 17 U.S.C. § 102 (subject matter of copyright; idea/expression)(law.cornell.edu)
  3. 17 U.S.C. § 106 (exclusive rights in copyrighted works)(law.cornell.edu)
  4. 17 U.S.C. § 501 (infringement of copyright)(law.cornell.edu)
  5. 17 U.S.C. § 504 (remedies; statutory damages, innocent and willful)(law.cornell.edu)
  6. 17 U.S.C. § 411 (registration as a prerequisite to an infringement suit)(law.cornell.edu)
  7. Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191 (1931)(law.cornell.edu)
  8. Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019)(law.cornell.edu)
  9. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991)(law.cornell.edu)
  10. Thaler v. Perlmutter, No. 23-5233 (D.C. Cir. Mar. 18, 2025)(media.cadc.uscourts.gov).gov
  11. U.S. Copyright Office, Copyright and Artificial Intelligence, Part 2: Copyrightability (2025)(copyright.gov).gov
  12. Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190 (Mar. 16, 2023)(federalregister.gov).gov
  13. Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008)(courtlistener.com)
  14. Artifex Software, Inc. v. Hancom, Inc. (N.D. Cal. 2017) (GPL enforceable as a contract)(wsgr.com)
  15. Doe v. GitHub, Inc., No. 4:22-cv-06823-JST (N.D. Cal.) (GitHub Copilot litigation docket)(courtlistener.com)
  16. Software Freedom Conservancy v. Vizio, Inc. (GPL third-party-beneficiary enforcement)(sfconservancy.org)
  17. Thomson Reuters Enterprise Centre GmbH v. Ross Intelligence Inc. (D. Del. Feb. 11, 2025)(dwt.com)
  18. Bartz v. Anthropic PBC, No. 3:24-cv-05417 (N.D. Cal. June 23, 2025)(afslaw.com)
  19. Kadrey v. Meta Platforms, Inc., No. 23-cv-03417-VC (N.D. Cal. June 25, 2025)(goodwinlaw.com)
  20. The Open Source Definition, Open Source Initiative(opensource.org)
  21. GNU Affero General Public License v3.0 (AGPL-3.0), § 13 (network use)(gnu.org)
  22. Apache License, Version 2.0(apache.org)
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