“The judge disagreed, however, on the grounds that the code suggested by Copilot was not identical enough to the developers’ own copyright-protected work, and thus section 1202(b) did not apply.”
The Copilot suit started with 22 claims. Two are left. Judge Tigar killed the DMCA claim with prejudice because Copilot’s output isn’t identical enough to the code it learned from. GitHub reportedly tuned Copilot last year to produce slight variations of its training code. Microsoft built the loophole into the product and the court walked through it.