Elsevier Inc., Cengage Learning, Inc., Hachette Book Group, Inc., Macmillan Publishing Group, LLC v. Meta Platforms, Inc. and Mark Zuckerberg

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 

                        Plaintiffs,                     26-cv-03689 (PKC) 
            -against-                              OPINION AND ORDER 
META PLATFORMS, INC., et al., 
                        Defendants. 
      □□□ nnn nnn nnn  nnn   nen     XK 
CASTEL, U.S.D.J. 

            Plaintiffs are several major book publishers and a famous author asserting claims 
under the Copyright Act alleging that Meta knowingly “torrented”! plaintiffs’ copyrighted 
materials to train its large learning model (“LLM”), a generative artificial intelligence (“AT”) 
platform.  Plaintiffs also allege that Meta covered its tracks by removing the copyright 
management information (“CMI”), a violation of the Digital Millenium Copyright Act 
(“DMCA”).  The action is brought as a putative class action against Meta Platforms, Inc. 
(“Meta”) and its CEO Mark Zuckerberg. 
            Meta and Zuckerberg each move to transfer this action to the Northern District of 
California, where six actions against Meta are pending.  These six actions assert substantially 
similar claims to the one pending before this Court. 
            The Court concludes that the first-filed rule applies, giving rise to a rebuttable 
presumption in favor of transfer.  The Court has also balanced the convenience factors and 

1 “Torrent” is defined as “a protocol . . . that is used to distribute a large computer file . . . that has been segmented in 
small pieces between a large number of peer-to-peer users.” Merriam Webster Dictionary, https://www.merriam- 
webster.com/dictionary/torrent (last accessed September 24, 2026). 

considered the interests of justice.  

28 U.S.C. § 1404

(a).  For reasons that will be explained, the 
motions to transfer will be granted. 

The Complaint in this Action 
            The present action (the “S.D.N-Y. Action”) is brought by Elsevier Inc., Cengage 
Learning, Inc., Hachette Book Group, Inc., Macmillan Publishing Group, LLC, McGraw Hill 
LLC, who are publishers, and the author Scott Turow and his publishing company, S.C.R.LB.E., 
Inc.  Three of the seven plaintiffs are headquartered in New York.  Defendant Meta is 
headquartered in Menlo Park, California, where defendant Zuckerberg’s office is located. 
            Plaintiffs bring three claims of unlawful “reproduction” and one claim of unlawful 
“distribution” against Meta and Zuckerberg, and one claim of contributory infringement against 
Zuckerberg, all brought under the Copyright Act, 

17 U.S.C. §§ 106

(1), (3) & 501, and one claim 
against Meta for “removal and/or alteration of’ CMI in violation of the DMCA, 

17 U.S.C. § 1202

(b). 
            The Complaint was filed in this District on May 5, 2026. 

The Northern District of California Actions 
            Pending in the Northern District of California are six actions against Meta, 
principally asserting that Meta violated the Copyright Act by torrenting and removing CMI from 
the plaintiffs’ copyrighted material to train its LLM: Kadrey v. Meta Platforms, Inc., 23-cv- 
03417 (VC) (filed Jul. 7, 2023),? Entrepreneur Media, LLC v. Meta Platforms, Inc., No. 3:25-cv- 

2 Kadrey is the result of a consolidation of three other complaints filed in the Northern District of California: 
Chabon v. Meta Platforms. Inc., 23-cv-04663 (VC), Huckabee v. Meta Platforms. Inc.. et al., 23-cv-06663 (VC): 
Farnsworth v. Meta Platforms. Inc., 24-cv-06893 (VC). 

09579 (VC) (filed Nov. 6, 2025), Carreyrou et al. v. Meta Platforms, Inc., 26-cv-03725 (VC) 
(filed Dec. 22, 2025),* Chicken Soup for the Soul, LLC v. Meta Platforms, Inc., 26-cv-02333 
(VC) (filed Mar. 17, 2026), Cognella, Inc. v. Meta Platforms, Inc., No. 26-cv-04053 (VC) (filed 
May 4, 2026), and Sullivan et al. v. Meta Platforms, Inc. et al., No. 26-vc-06793 (VC) (filed Jul. 
2, 2026)  (collectively, the “N.D. Cal. Actions”). 
            Plaintiffs in the N.D. Cal. Actions include published authors  (Kadrey), a magazine 
publisher  (Entrepreneur), a textbook publisher (Cognella), an LLC owner of book copyrights 
(Chicken Soup for the Soul), textbook authors (Sullivan), and other individual authors 
(Carreyrou).  Five of the six N.D. Cal. Actions — all but Sullivan — were filed before the 
S.D.N-Y. Action was filed in this Court.  One of the six N.D. Cal. Actions (Sullivan) names 
Zuckerberg as defendant. 
            Each of the N.D. Cal. Actions is assigned to the Honorable Vince Chhabria, 
U.S.D.J.  Of these cases, Kadrey has advanced the most.  In the Kadrey Fourth Amended 
Complaint, plaintiffs allege that Meta downloaded millions of pirated books through the bit 
torrent protocol and removed CMI from those books.  (Kadrey, ECF 702 9 90 & 107-113.) 
            Judge Chhabria granted summary judgment to Meta on some of the claims at 
issue, including its fair use defense, but the Judge emphasized that this was not an across-the- 
board ruling on all the claims against Meta before him: 
      Given the state of the record, the Court has no choice but to grant summary 
     judgment to Meta on the plaintiffs’ claim that the company violated copyright law 
      by training its models with their books.  But in the grand scheme of things, the 
      consequences of this ruling are limited.  This is not a class action, so the ruling 
      only affects the rights of these thirteen authors—not the countless others whose 
      works Meta used to train its models.  And, as should now be clear, this ruling 
      does not stand for the proposition that Meta’s use of copyrighted materials to train 

3 Carreyou does not allege a violation of the DMCA. 

     its language models is lawful.  It stands only for the proposition that these 
    plaintiffs made the wrong arguments and failed to develop a record in support of 
     the nght one. 
                                    ek 
     In cases involving uses like Meta’s, it seems like the plaintiffs will often win, at 
     least where those cases have better-developed records on the market effects of the 
     defendant’s use. 
Kadrey v. Meta Platforms, Inc., 

788 F. Supp. 3d 1026

, 1036-37, 1059 (N.D. Cal. 2025) 
           Kadrey remains a putative class action.  The claims alleging violations of the 
Copyright Act by means of distribution remain pending, see Kadrey, 788 F. Supp. 3d at 1043. 
The DMCA claim relating to removal of CMI failed on partial summary judgment.  (Kadrey, 
ECF 601.) 

Section 1404(a) and the First-Filed Rule 
           District Courts may transfer an action to another district where the action might 
have been brought “[flor the convenience of parties and witnesses, in the interest of justice... .” 

28 U.S.C. §1404

(a).  There is no dispute that the S.D.N.Y. Action could have been properly 
brought in the Northern District of California.  (ECF 72 at 15.)  Meta is headquartered in Menlo, 
Park, California, which is located in San Mateo County and lies within the Northern District of 
California.  As plaintiffs allege, Zuckerberg, CEO of Meta, maintains an office in Menlo Park. 
(ECF 1  at 8.) 
           Where two competing actions are pending in different districts, the first-filed 
action usually has priority.  Employers Insurance of Wausau v. Fox Entertainment Group, Inc., 

522 F.3d 271, 274-75

 (2d Cir. 2008).  The actions need not be identical; the parties and issues 
only need to be “substantially similar.”  Santana v. Cavalry Portfolio Services, LLC, 19-cv-3773 
(PAE), 

2019 WL 6173672

, *3 (S.D.N-Y. 2019) (Engelmayer, J.) (citing Regions Bank v. Wieder 

& Mastroianni, P.C., 

170 F. Supp. 2d 436, 441

 (S.D.N-Y. 2001) (Conner, J.); Castillo v. Taco 
Bell of America, LLC, 

960 F. Supp. 2d 401, 404

 (E.D.N-Y. 2013)). 
           Plaintiffs assert that the core issues in the S.D.N.Y. Action include “[d]efendants’ 
illegal torrenting and reproduction of Plaintiffs’ works to train Meta’s LLMs... .”  (ECF 72 at 
13.)  The S.D.N-Y. Action and the N.D. Cal. Actions assert unlawful use of torrenting protocols 
in violation of the Copyright Act §§ 106(1) & 501.  Compare (Entrepreneur, ECF 1 § 62) (“Meta 
used torrenting protocols to download the Infringed Works from pirated sources.”) with 
(Plaintiffs’ Complaint, ECF 1 § 1) (“[Meta and Zuckerberg] illegally torrented millions of 
copyrighted books and journal articles from notorious pirate sites.”)  The S.D.N.Y. Action and 
all but one of the N.D. Cal. Actions also allege a violation of section 1202(b) of the DMCA by 
deleting CMI from the pirated works.  Compare (Entrepreneur, ECF 1 □□ 74) (“Meta’s removal or 
alteration of CMI was intentional and designed to prevent Llama from revealing that it was 
trained on copyrighted works[.]”) with (Plaintiffs’ Complaint,  ECF 1 § 228) (Meta... 
intentionally removed and/or altered CMI from Plaintiffs’ and the Class’s copyrighted works .. . 
    The Court concludes that the claims and their factual underpinnings of the $_.D.N. Y. Action 
and the early filed N.D. Cal. Actions are substantially the same. 
           As noted, none of the N.D. Cal. Actions filed before the S.D.N.Y. Action named 
the CEO of Meta as a party defendant on a contributory infringement theory.*  But this does not 
alter the conclusion that the first-filed actions are substantially similar.  If it were otherwise, it 
would provide parties with a simple means to evade transfer under the first-filed rule.  See 

* Subsequent to the filing of the S.D.N_Y. action, the Sullivan action was filed in the Northern District of California 
naming Zuckerberg as a defendant on a contributory infringement claim. Compare (Sullivan, ECF 1 § 126) 
(“Zuckerberg oversaw and directed Meta to undertake [copyright infringement violations.]”) with (Plaintiffs’ 
Complaint, ECF 1 § 220) (“Zuckerberg actively encouraged Meta to download and distribute Plaintiffs’ and the 
Class’s copyrighted works by authorizing, approving, and/or directing Meta’s illegal torrenting.”) 

Liberty Mutual. Ins. Co. v. Fairbanks Co., 

17 F. Supp. 3d 385, 393

 (S.D.N-Y. 2014) (Koeltl, J.) 
(“[T]he existence of non-overlapping parties does not defeat application of the first-filed rule as 
long as some of the parties do overlap.”) 
            The first-filed rule is not “an invariable mandate.”  Employers Insurance of 
Wausau, 

522 F.3d at 275

.  “The inquiry still requires selection of the more appropriate forum, 
since the first-filed rule is only a ‘presumption’ that may be rebutted by proof of the desirability 
of proceeding in the second-filed forum.”  

Id.

 (citation omitted).° 
            The convenience factors that should be balanced in arriving at an answer to 
whether the action ought to be transferred include “(1) the plaintiff's choice of forum, (2) the 
convenience of witnesses, (3) the location of relevant documents and relative ease of access to 
sources of proof, (4) the convenience of the parties, (5) the locus of operative facts, (6) the 
availability of process to compel the attendance of unwilling witnesses, [and] (7) the relative 
means of the parties.”  D.H. Blair  & Co. v. Gottdiener, 

462 F.3d 95

, 106—07 (2d Cir. 2006) 
(citation omitted). 

   1.  Plaintiffs’ Choice of Forum 
            Plaintiffs’ selection of a forum is entitled to deference, even where the first-filed 
presumption applies.  As noted, three of the seven plaintiffs are headquartered in this District. 
The other four plaintiffs are not principally located here. 

> Special circumstances that amount to exceptions to the to the first-filed rule include improper anticipatory 
declaratory judgment actions, which is not a consideration here, and instances where “forum shopping alone” 
motivated the choice of forum. Employers Insurance of Wausau, 

522 F.3d at 275-76

. Here, forum shopping is not 
the apparent principal motivation. 

            Even though plaintiffs’ selection of forum is entitled to deference, their selection 
of this District as the forum is entitled to somewhat less weight.  Plaintiffs bring claims in a 
representative capacity on behalf of a nationwide class.  The number of absent class members, if 
the class is certified, would vastly outnumber the number of class representatives.  (ECF 1  at □ 
169) (“Defendants have infringed many thousands of copyrights belonging to many members of 
the Class.”).  See In re Warrick, 

70 F.3d 736

, 741 n.7 (2d Cir. 1995) (“It is true . . . that the 
plaintiffs choice of forum is a less significant consideration in a (here, putative) class action than 
in an individual action.”’); In re Bystolic Antitrust Litig., No. 20-CV-5735 (LJL), 

2021 WL 148747

, at *3 (S.D.N_Y. Jan. 15, 2021) (Liman, J.) (“Where, as here, a plaintiff has brought a 
class action, the plaintiff's choice of forum is accorded less weight.”’); Totilo v. Herbert, 

538 F. Supp. 2d 638, 640

 (S.D.N.Y. 2008) (Kaplan, J.) (“Where . . . the plaintiff sues on behalf of a 
putative class, the degree of deference accorded its choice is diminished.’’) 
            This factor tilts slightly in favor of the plaintiffs. 

   2.  Location of Relevant Documents 

            The location of relevant documents and relative ease of access to sources of proof 
is a neutral factor given the ease with which electronic discovery may be transferred.  See 
American Eagle Outfitters, Inc. v. Tala Bros. Corp., 

457 F. Supp. 2d 474, 478

 (S.D.N.Y. 2006) 
(Sweet, J.) (‘The location of documents and records is not a compelling consideration when 
records are easily portable.” (citation and internal quotation marks omitted)). 
            With respect to the first fair use factor — whether Meta’s commercial use is 
transformative — Plaintiffs’ counsel acknowledged that, “[a] lot of that will come from 
discovery that’s already been developed,” referring to discovery already conducted in the N.D. 

Cal. Actions.  (ECF 99 at 20.)  But he urges that the “market harm” discovery will come from 
New York because it is “the epicenter of the publishing industry.”  (Id. at 21.)  Even so, the 
documentary evidence on harm, likely to be in electronic form, is also portable. 
            Thus, this factor is neutral in the analysis. 

   3.  Convenience of the Parties 

            Meta’s headquarters and Zuckerberg’s office are in the Northern District of 
California, making that district more convenient for defendants.  On the other hand, S.D.N-Y. is 
more convenient for the three plaintiffs whose headquarters are in the District.  The Court 
accepts that Meta has a large New York presence and that Zuckerberg travels here from time to 
time. 
            Even so, the Court notes that, in the absence of transfer, there would be an 
inconvenience to Meta of facing claims in two geographically distant fora.  For Zuckerberg, the 
inconvenience of litigating in two fora is modest during the discovery phase.  But if this action 
proceeds to a lengthy jury trial, Zuckerberg would need to be present for some or all of the trial, 
2,500 miles away from the headquarters of the company he leads as CEO. 
            The factor tilts slightly in favor of transfer. 

   4.  Locus of the Operative Facts 

            At argument, Meta acknowledged that the so-called torrenting activity, 
downloading material while simultaneously uploading other material, took place in three 
locations: Menlo Park, New York and London.  (ECF 99 at 10-11.)  The individuals who made 

the decision to acquire data sets by torrenting are or were based in Menlo Park, London, New 
York, and an unidentified location in France.  (Id. at 12—13.)  Both this District and the Northern 
District of California are loci of the operative facts.  Other loci — the U.K. and France — are 
somewhat closer to this District. 
           Plaintiffs in the S.D.N.Y. Action allege that Zuckerberg, Meta’s CEO whose 
office is in Menlo Park, was a “primary actor” in the copyright infringement.  (Plaintiffs’ 
Complaint, ECF 1 § 39.) None of Zuckerberg’s decisions or actions relevant to the merits of the 
claims are alleged to have occurred in New York.® 
           This factor tilts in favor of transfer. 

  5.  Availability of Process to Compel Attendance of Unwilling Witnesses 
           According to Meta, 45% of its 53,810 U.S. full-time U.S. employees work out of 
offices in or work remotely from a location in the Northern District of California.  (ECF 61    6, 
8.)  Approximately 14% of their full-time U.S. office and remote employees are in the Southern 
District of New York.  (Id. at 9 9.)  Meta has come forward with a declaration identifying by 
name and title former employees in key positions related to AI; nine worked out of the Menlo 
Park or San Francisco offices, five worked in the New York City area, and one worked in 
Seattle.  (Id. at   12.) 
           Based on discovery taken in the Northern District of California actions, plaintiffs 
identify seven New York-based witnesses associated with Meta who are key to their allegations. 
(ECF 72 at 12-13.)  Four of them appear to be present employees and three are former 
employees believed to be living in the New York area.  (Id.) 

6 To support their claim of personal jurisdiction over Zuckerberg, plaintiffs assert that Zuckerberg had authority and 
the power to direct “Meta employees in New York and elsewhere.” (Plaintiffs’ Complaint, ECF 1 4 40.) 

            There is no claim that present employees could not be compelled (by the Court or 
their employer) to travel to either New York or San Francisco for trial absent some unique 
personal circumstance.  Neither side claims to know whether an identified former employee 
would be willing to travel to trial in a distant location if his or her expenses were covered by 
either side. 
            The factor tilts slightly in favor of transfer because of the greater number of likely 
witnesses with a connection to the Northern District of California. 

   6.  Relative Means of the Parties 
            Plaintiffs assert without contradiction that “Meta and Zuckerberg are among the 
wealthiest companies and individuals in the world.”  (ECF 72 at 25.) 
            The resources of plaintiffs are assumed to be much smaller but still are 
substantial: “Elsevier is a world leading provider of professional information solutions in the 
science, medical, and health sectors” (Plaintiffs’ Complaint, ECF 1 § 44); “Cengage’s textbooks . 

.  . are among the most popular and widely used titles in their fields” (Id. at § 45); Hachette is the 
third-largest U.S. trade publisher”  (Id. at § 46); Elsevier, Hachette, and McGraw Hill are 
subsidiaries of public companies (ECF 6, 8 & 10); Macmillan and McGraw Hill assert that they 
are “leading” publishing companies or providers of education solutions (Plaintiffs’ Complaint, 
ECF 1 §§ 47-48); Scott Turow is a famous and respected author whose books have sold “more 
than 40 million copies worldwide.” (Id. at § 49.) 
            In terms of absolute financial resources, Meta’s resources are substantially 
greater.  But the resources of each side are sufficient for the needs of the litigation such that 
Meta’s greater resources do not substantially weigh in favor of denying transfer. 

            This factor slightly favors plaintiffs. 

   7.  Eamiliarity with a Jurisdiction’s Law. 
            There is no issue of expertise in a particular jurisdiction’s law. All claims asserted 
in the S.D.N-Y. Action arise under federal law. 
            This factor is neutral. 

   8.  Overall Balancing and the Interests of Justice 
            Cases moved swiftly on Judge Chhabria’s docket.  Cognella was filed one day 
prior to the commencement of plaintiffs’ action.  Fact discovery has been completed, and 
summary judgment motions are expected to be heard in February 2027.  (ECF 99 at 6-7) 
(“Entrepreneur and 3C [1.e., Carreyou, Cognella, Chicken Soup for the Soul] cases . . . have 
proceeded all the way through fact discovery ....  Now the parties are about to serve their expert 
reports over the next couple of months.  Immediately thereafter, summary judgment will be 
briefed and heard by Judge Chhabria in February of 2027.”) 
            Judge Chhabria continues to receive related cases even after the filing of the 
S.D.N.Y. Action.  Sullivan was filed on July 2, 2026, and reassigned to his docket by the end of 
the month.  (Sullivan, ECF 29.) 
            Counsel for Meta has represented that, subject to agreement on a protective order 
and other protocols, its rolling production to plaintiffs will begin on October 12.  (Id. at 20.) 
This will happen regardless of whether the transfer motion is granted, denied, or remains sab 
judice.  (Id. at 31.)  Therefore, there will be no prejudicial delay to plaintiffs’ action by reason of 
transfer. 

            Inconsistent standards may be applied to the same course of conduct by Meta if 
the substantially similar S.D.N-Y. Action and N.D. Cal. Actions are litigated in two different 
fora.’ This is not an instance where the potential transferor and transferee districts are in the 
same Circuit, reducing this risk.  Cf. United States v. New York, No. 25-CV-3656 (PKC), 

2025 WL 2208941

, at *4 (S.D.N.Y. Aug. 4, 2025) . 
            Additionally, there is little danger of a diminished “intercourt dialogue.”  (ECF 99 
at 28.)  The development of copyright law in this area will have robust input from other judicial 
sources.  In this District, for example, Judge Stein is presiding over coordinated multi-district 
proceedings regarding OpenAI’s use of copyrighted material in training its LLM.  In re OpenAI, 
Inc. Copyright Infringement Litigation, 25-md-3143 (SHS) (OTW) (S.D.N.Y.).8 
            A decision to transfer this action is not a usurpation of the role of the Judicial 
Panel on Multidistrict Litigation (the “JPML”).  The JPML has described centralization as “the 
last solution” and notes that “transfer under Section 1404(a) — where appropriate — can result 
in a more streamlined action, without the procedural necessity of remand to the transferor court 
that is required under Section 1407.”  In re: Gerber Probiotic Prods. Mktg.  & Sales Pracs. Litig., 

899 F. Supp. 2d 1378, 1379-80

 (J.P.M.L. 2012).  Transfer “allows for the possibility of 
consolidation of actions for trial, which potentially avoids the increased costs associated with 
multiple trials after the Panel remands actions to the various transferor courts once pretrial 
proceedings are concluded.”  

Id. at 1380

. 

7 Ina different context, plaintiffs have expressed a similar concern. Plaintiffs argue their proposed class action is 
superior to individual actions because certification will minimize “the risk of inconsistent adjudication.” (Plaintiffs’ 
Complaint, ECF 1 § 173.) 
® The MDL includes claims against Microsoft, such as Bird v. Microsoft Comp., 25-cv-5282 (SHS) (S.D.N.Y.), which 
alleges that “Microsoft copied a massive trove of pirated books to train” its AI tool. (Bird, ECF 1 at 12.) 

            Taking into account the totality of the circumstances, the Court concludes that the 
presumption in favor of transfer premised upon the first-filed rule has not been overcome, and 
when considered with the convenience factors, the defendants have, by clear and convincing 
evidence, demonstrated that the balance tips in favor of transfer. 

CONCLUSION 
            The motions to transfer this action to the United States District Court for the 
Northern District of California are GRANTED.  The Clerk is respectfully requested to terminate 
the motions at ECF 59 & 60, transfer the action, and administratively close the case. 

            SO ORDERED. 
                                         LZ   Fees   Le 
                                              United States District Judge 
Dated: New York, New York 
      September 25, 2026