- Ziff Davis Claim 4 (unjust enrichment preempted), Claim 5 (DMCA 1201 claim), part of Claim 8 (trademark dilution of famous mark), except against Mashable, dismissed.
- Ziff Davis Claims 3 (contributory infringement), 6 (DMCA 1202(b)(1) CMI claim), and 7 allowed.
- OpenAI’s motion to stay is denied as to claim 7 (DMCA 1201(b)(3) CMI claim) and is moot as to claims 4 and 5 in light of the Court’s dismissal of those claims.
- OpenAI’s motion to stay is granted as to the models not already in this multidistrict litigation (“MDL”), namely, the o1, o1 mini, o1-pro, GPT-4.1, GPT-4.5, o3, o3-mini, o4-mini, and GPT-5 models.
Judge Stein issued his ruling on OpenAI’s motion to dismiss some of the claims of Ziff Davis, the owner of Mashable and other online media.
The biggest part of the ruling: Judge Stein dismissed Ziff Davis’s DMCA 1201 anti-circumvention claim. This is a novel theory being advanced in several cases. Judge Stein ruled that the complaint failed to sufficiently allege that a website’s use of “robotx.txt” file to avoid web crawlers was a technological measure that effectively controlled access to copyrighted content under the definition of the DMCA. It did not, to quote the DMCA, “require[] the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.” 17 U.S.C. 1201(a)(3)(B); Ziff Davis v. OpenAI, slip op. at 6 (below).
Is the Second Circuit’s standard for contributory infringement wrong?
Also noteworthy is that Judge Stein denied OpenAI’s motion to dismiss the contributory infringement claim based on the Second Circuit’s standard that relies on “actual or constructive knowledge” of the third-party’s infringing activity (using ChatGPT).
But that constructive knowledge standard may be legal error if the Supreme Court rules the way many predict it will in the Cox Communications v. Sony Music case. It’s quite likely that ruling will come out even before Judge Stein will rule on motions for summary judgment in this case, so there’s still a chance any legal error in the constructive knowledge standard of the Second Circuit will be addressed in this case by Judge Stein.
DOWNLOAD JUDGE STEIN’S RULING