IP Law Daily, COPYRIGHT—S.D.N.Y: Ignoring a ‘do-not-crawl’ instruction does not constitute circumvention of a technical measure, (Dec 16, 2025)

By Matthew Hersh, J.D.

A magazine publisher’s complaint against OpenAI is narrowed, but still moves forward.

A magazine publisher did not adequately allege that the operators of a well-known chat program circumvented a technical measure in violation of the Digital Millennium Copyright Act by ignoring an instruction in the publisher’s website that prohibited the copying of the website contents by a web-crawling program, the federal court for Manhattan has held. But the court, in narrowing the complaint in this and several other ways, nonetheless allowed much of the rest of the lawsuit to go forward for now (Ziff Davis, Inc. v. OpenAI, Inc., No. 1:25-cv-04315-SHS-OTW (S.D.N.Y. Dec. 15, 2025)).

The opinion comes in a lawsuit brought by publisher Ziff Davis against OpenAI, the company behind the ubiquitous ChatGPT and other large language model-based artificial intelligence programs. The now-amended complaint, which alleges that OpenAI has repeatedly exploited unauthorized copies of the publisher’s works during the development and operation of its AI programs, levels claims of copyright infringement, trademark infringement under federal and state law, and violations of the Digital Millenium Copyright Act, or DMCA. The complaint, which has since been consolidated with other OpenAI complaints and referred to a multi-district panel, also alleges that OpenAI was unjustly enriched by its conduct.

OpenAI moved to dismiss several of the claims, leading to this opinion.

Unjust enrichment. The court found that Ziff Davis’s unjust enrichment claim was preempted by the Copyright Act. Courts have generally concluded that the theory of unjust enrichment protects rights that are essentially equivalent to rights protected by the Copyright Act, the court noted, and therefore such claims are “generally preempted.” There was no need for a different outcome here, the court found. The basis of Ziff Davis’s unjust enrichment claim, the court noted, was that OpenAI used Ziff Davis’s copyrighted works in an unauthorized way. “The fundamental nature of this claim,” the court reasoned, “is equivalent to a claim to enforce exclusive rights within the general scope of copyright.” The claim would therefore be dismissed.

Circumvention of technology measures. Ziff Davis also would not proceed on its claim that OpenAI circumvented technology measures by copying information that it found on the publisher’s websites. Ziff Davis noted that in sweeping up data from its websites, OpenAI did so in defiance of an express instruction embedded in its website code that the website contents were not to be swept up by automated “web crawler” programs. But this instruction, embedded in the website in the form of a filedentitled “robots.txt,” the court noted, did not serve as a “measure designed to thwart unauthorized access.” Such instructions, the court reasoned, “do not effectively control access to that content any more than a sign requesting that visitors ‘keep off the grass’ effectively controls access to a lawn. OpenAI may well have violated Ziff Davis’s instruction, the court reasoned, but it could not have circumvented a “technical measure.” This claim, too, would fail.

Removal of copyright management information. But while Ziff Davis would not move forward on its claim of circumvention, it would be entitled to proceed on its other DMCA claim—namely, that OpenAI distributed its works with copyright management information removed. In OpenAI’s view, the court noted, the complaint alleges only distribution of Ziff Davis works to the publisher’s own lawyers and experts (when they were able to generate CMI-less outputs using ChatGPT) and that these outputs in any event constituted only the public display, rather than the distribution, of Ziff Davis works.

But OpenAI was wrong on both counts, the court held. The fact that Ziff Davis’s attorneys were able to generate works missing CMI, the court reasoned, was “sufficient to render plausible the FAC’s allegation that such outputs have also been generated for third parties.” As to distribution, the court noted, Ziff Davis alleged that full copies of some of its works appeared in training data that OpenAI made publicly available, under a license, on the website GitHub. Since a license can serve as a distribution of a work, the court reasoned, this claim also was adequately pleaded.

Trademark dilution. The court also found that Ziff Davis’s claim of trademark dilution could also go forward—at least in part. OpenAI claimed that Ziff Davis did not sufficiently allege that its marks were “famous,” a necessary element for trademark dilution. OpenAI met the grade for one of its marks, the court found, namely the MASHABLE mark. The publication by that name, the complaint alleged, was not only widely read, but operated specifically under the MASHABLE mark—thus sufficiently alleging that the mark was “widely recognized by the general consuming public of the United States as a designation of source of articles from the Mashable publication,” the court found.

But the same could not be said for the other marks in question, the court found. Critically, the court noted, while the complaint alleged that Ziff Davis publications Lifehacker, CNET, ZDNET, PCMag, BabyCenter, and IGN were well known, the complaint did not allege that they operated under the corresponding LIFEHACKER, CNET, ZDNET, PCMAG, BABYCENTER, or IGN marks. The claim as to these marks, as a result, would not go forward.

The Case is No. 1:25-cv-04315-SHS-OTW.

Judge: Stein, S.

Attorneys: Lacy H. Koonce, III (Klaris Law PLLC), Kristen Healey Cramer (Womble Bond Dickinson (US) LLP) for Ziff Davis Inc., Ziff Davis, LLC, IGN Entertainment, Inc., Everyday Health Media, LLC, Mashable, Inc., and CNET Media, Inc. Andrew Gass (Latham & Watkins, LLP), Joseph C. Gratz (Morrison & Foerster LLP), and Robert A. Van Nest (Keker, Van Newst & Peters, LLP) for OpenAI Inc., OpenAI GP LLC, OpenAI, LLC, OpenAI OpCo LLC, OpenAI Global LLC, OAI Corporation, LLC, OpenAI Holdings, LLC, OpenAI Startup Fund I LP, OpenAI Startup Fund GP I LLC, and OpenAI Startup Fund Management LLC.

Companies: Ziff Davis Inc.; Ziff Davis, LLC; IGN Entertainment, Inc.; Everyday Health Media, LLC; Mashable, Inc.; CNET Media, Inc.; OpenAI Inc.; OpenAI GP LLC; OpenAI, LLC; OpenAI OpCo LLC; OpenAI Global LLC; OAI Corporation, LLC; OpenAI Holdings, LLC; OpenAI Startup Fund I LP; OpenAI Startup Fund GP I LLC; OpenAI Startup Fund Management LLC

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