The phrases “generative AI” and “copyright” evoke a multitude of stories about unauthorized training, scraping, and violation of norms. The thought that somebody could then turn around and then try to copyright works generated by these large language models is absurd, but in 2026 anything kind of goes doesn’t it?
One of the big arguments against generative AI-based coding tools is that they were trained on billions of lines of copyrighted and licensed works in the open source ecosystem, and they strip those works of all attribution and violate the terms of the licenses.
Yesterday there was some fervor about the Supreme Court allowing a lower court decision to stand in my timeline. I have been following this topic for a few weeks after reading this Congressional Research Service report: Generative Artificial Intelligence and Copyright Law (PDF) and considering how some of the guidance might affect the use of generative AI in open source projects.
So uh
does this mean that there is now precedent that at least “agentic” dev systems, potentially any genAI dev system, now leaves companies open to their code no longer being considered copyrightable if they use these systems?
kat is right that this is huge.
In the Delta Lake project we rely on Developer Certificate of Origin (DCO) with guidance from the Linux Foundation. Yes, that Linux Foundation.
From the DCO:
The contribution was created in whole or in part by me and I have the right to submit it under the open source license indicated in the file; or
From the Apache License:
“Licensor” shall mean the copyright owner or entity authorized by the copyright owner that is granting the License.
[..]
“Contributor” shall mean Licensor and any individual or Legal Entity on behalf of whom a Contribution has been received by Licensor and subsequently incorporated within the Work.
I am no lawyer but I do have at least a 12th grade reading comprehension level.
If AI-generated works are not copyrightable, then it is not possible for somebody to license under any open source license, much less assert via DCO that they are able to do so.
Again, this is a big deal.
From the Congressional Research report
The AI Guidance states that authors may claim copyright protection only “for their own contributions” to such works, and they must identify and disclaim AI-generated parts of the works when applying to register their copyright.
The only viable solution I can imagine is that all AI-generated code contributions in open source projects is considered public domain and commented appropriately. Otherwise I don’t see a sensible path forward for AI-generated code in open source projects.