https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=322...

Paper Abstract and download link.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7682724

Mark A. Lemley

Stanford Law School

Date Written: October 29, 2026

Abstract

> The vast majority of coders and software companies today use AI-generated code or employ programmers who do; surveys suggest that nearly 90% of coders are using AI tools like Claude Code or Codex to write their software.

> That code is uncopyrightable regardless of how it is made. There are three possibilities:

> First, the AI tool may replicate someone else’s proprietary code from its training data set. And if portions of their code are infringing, the law denies the user copyright protection even for the parts that are original that are intermingled with the infringing code.

> Second, the AI tool may replicate open source code from its training data set. The viral nature of most open source licenses means that the user who incorporates that code, even unwittingly, has agreed to open their code in turn to copying by others.

> Third, the AI tool may generate its own code. But AI-generated code is uncopyrightable.

> In none of those cases is software copyrightable. The end of software copyright is nigh. Indeed, it may be here already. That doesn’t mean the end of the software industry, and probably not even the end of proprietary software. The industry may muddle through, and it may persuade Congress to change the law. But whatever future comes, the law of copyright and the software industry it underlies will never be the same.