Ziff Davis, Inc. et al. v. OpenAI, Inc. et al.

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF   NEW YORK 

                                          |       25-md-3143 (SHS) (OTW) 
OPENAL, INC.,
                                          |           A                TT 
COPYRIGHT INFRINGEMENT LITIGATION |       MEMORANDUM ORDER 

This Document Relates To:
    Ziff Davis, Inc. et al. v. OpenAl, Inc. et al.,
    25-cv-4315 
SIDNEY H. STEIN, U.S. District Judge. 
   Before the Court are OpenAI’s! motion (Dkt. No. 1586)? for judgment on the 
pleadings pursuant to Federal Rule of Civil Procedure 12(c) dismissing Ziff Davis’s® 
contributory copyright infringement claim and Ziff Davis’s cross motion (Dkt. No. 1608) 
requesting leave to file  a Second Amended Complaint dismissing its contributory 
copyright infringement, federal trademark dilution, and state-law trademark dilution 
claims.  OpenAI’s Rule 12(c) motion is denied as moot.  Ziff Davis’s contributory 
copyright infringement claims and trademark dilution claims are dismissed with 
prejudice as to the active portion of Ziff Davis’s case and are dismissed without 
prejudice as to the stayed portion of Ziff Davis’s case. 
   The Court assumes familiarity with the history of this multidistrict litigation and 
Ziff Davis’s case.  Ziff Davis’s First Amended Complaint asserted a claim against 
OpenAI for contributory copyright infringement premised on the theory that OpenAl 
knew of and “materially contributed” to end users’ direct infringement of Ziff Davis’s 
copyrights.  (Dkt. No. 300 [J 226-31).  Ziff Davis’s First Amended Complaint also 
asserted claims against OpenAl for trademark dilution under federal and state law.  (Id. 
   260-68.)  In December 2025, the Court granted OpenAI’s motion to stay Ziff Davis's 
case as to models not otherwise within the scope of the multidistrict litigation—i.e., the 

1“OpenAl” refers to defendants OpenAI, Inc., OpenAI LP, OpenAI GP LLC, OpenAI 
LLC, OpenAI OpCo LLC, OpenAI Global Li.C, OAI Corporation, LLC, and OpenAI 
Group PBC. 
2 All citations to docket entries are to the docket for Case No. 25-md-3143 unless 
otherwise noted. 
3 “Ziff Davis” refers to plaintiffs in Case No. 25-cv-4315,

o1, 01 mini, 01-pro, GPT 4.1, GPT-4.5, 03, 03-mini, 04-mini, and GPT-5 models.  See In re 
OpenAI, Inc. Copyright Infringement Litig., No. 25-md-3143, 

2025 WL 3635559

, at *9-10 
(S.D.N.Y. Dec. 15, 2025). 
   In its recent decision in Cox Communications, Inc. v. Sony Music Entertainment, the 
U.S. Supreme Court held that “material contribution” is not a valid theory of 
contributory liability for copyright infringement.  

146 S. Ct. 959

 (2026).  Based on Cox, 
OpenAI moved pursuant to Rule 12(c) for judgment on the pleadings dismissing Ziff 
Davis’s contributory copyright infringement claim against OpenAI because it was 
premised on the impermissible “material contribution” theory of contributory copyright 
infringement.  (Dkt. Nos. 1586; 1587 at 1-2.) 
   In response to OpenAl’s Rule 12(c) motion, Ziff Davis seeks voluntarily to dismiss 
its contributory copyright infringement claim against OpenAI as well as its federal and 
state-law trademark dilution claims.  (Dkt. No. 1608.)  The dispute between OpenAI and 
Ziff Davis concerns the nature of Ziff Davis’s requested dismissal.  Because the Court in 
December 2025 granted OpenAlI’s motion to stay Ziff Davis’s case as to models not 
otherwise within the scope of the multidistrict litigation, Ziff Davis seeks to dismiss its 
contributory copyright infringement and trademark dilution claims with prejudice as to 
Ziff Davis’s active claims but without prejudice as to Ziff Davis’s stayed claims. 
   The parties agree that Ziff Davis’s active “material contribution” contributory 
copyright infringement and active trademark dilution claims should be dismissed with 
prejudice.  OpenAl’s Rule 12(c) motion is denied as moot because it sought exactly what 
Ziff Davis has now agreed to:  the dismissal with prejudice of Ziff Davis's active 
contributory copyright infringement claim.  Ziff Davis’s active “material contribution” 
contributory copyright infringement claim and active trademark dilution claims are 
dismissed with prejudice. 
   Turning to the contested matter before the Court, the Court will permit Zirf Davis 
to dismiss its stayed contributory copyright infringement claim and stayed trademark 
dilution claims without prejudice. 
   Courts in this Circuit consider the factors set forth in Zagano v. Fordham Univ., 

900 F.2d 12

 (2d Cir. 1990), when evaluating a request for voluntary dismissal without 
prejudice pursuant to Federal Rule of Civil Procedure 41(a) or 15(a).  These factors are: 
(1) “the plaintiff’s diligence in bringing the motion”;  (2) “any undue vexatiousness on 
plaintiff’s part”; (3) “the extent to which the suit has progressed, including the 
defendant's effort and expense in preparation for trial”; (4) “the duplicative expense of 
relitigation”; and (5) “the adequacy of plaintiff’s explanation for the need to dismiss.” 
Zagano, 

900 F.2d at 14

 (internal quotation marks omitted).

  Importantly, a court evaluating a plaintiff's request for voluntary dismissal without 
prejudice does not simply choose between permitting a voluntary dismissal without 
prejudice and imposing an involuntary dismissal with prejudice.  Rather, the court 
must determine whether to permit dismissal without prejudice or require the plaintiff 
to continue to litigate the claims.  See Zebra Strategies, Inc. v. Gonzalez-Nazario, No. 
24-cv-4146, 

2025 WL 977592

, at *2 (S.D.N.Y. Apr. 1, 2025) (“Case law makes clear that 
where a  plaintiff moving to dismiss a case without prejudice objects to  a proposed 
dismissal with prejudice, a district court cannot force a with prejudice dismissal on the 
plaintiff.”); accord Gravatt v. Columbia Univ., 

845 F.2d 54, 56

 (2d Cir. 1988) 
(“[FJundamental fairness requires interpreting Rule 41(a)(2) to afford the plaintiff an 
opportunity to withdraw his motion [to dismiss without prejudice] and proceed with 
the litigation in the event that a district judge proposes to convert a voluntary dismissal 
to one with prejudice.”). 
   The Zagano factors favor permitting Ziff Davis’s requested voluntary dismissal 
without prejudice of the stayed contributory copyright infringement and trademark 
dilution claims.  The Court, at OpenAl’s urging and over the strenuous objection of Ziff 
Davis, stayed Ziff Davis’s case with respect to models not otherwise implicated in the 
multidistrict litigation, i.e., the 01, 01 mini, 01-pro, GPT 4.1, GPT-4.5, 03, 03-mini, 04- 
mini, and GPT-5 models.  In re OpenAlI, Inc. Copyright Infringement Litig., 

2025 WL 3635559

, at *9-10.  That means, in effect, that the litigation as to the stayed claims was 
frozen at its inception.  In light of this posture, Ziff Davis’s request to dismiss certain of 
its stayed claims without prejudice is not unduly vexatious and does not demonstrate a 
lack of diligence by Ziff Davis.  The practical implications of the stay currently in place 
also mean that permitting Ziff Davis’s requested voluntary dismissal without prejudice 
will not cause any duplicative expense of relitigation of the stayed claims—the partial 
stay of Ziff Davis’s case would have required litigating Ziff Davis’s stayed claims 
separately from its active claims in any event. 
   Ziff Davis has provided a coherent and adequate explanation for its request to 
dismiss its stayed claims without prejudice.  With respect to Ziff Davis’s contributory 
copyright infringement claim, Ziff Davis correctly notes that Cox did not foreclose all 
theories of contributory copyright infringement.  See Cox, 146 S. Ct. at 967 (stating that a 
“provider of a service is contributorily liable” for copyright infringement “if the party 
induced the infringement or the provided service is tailored to that infringement”). 
Though it would be too late to permit Ziff Davis to add new theories of contributory 
liability as to its active contributory copyright infringement claim, Ziff Davis’s stayed 
claim is—pursuant to the stay OpenAI itself requested—in its infancy.  Ziff Davis 
should not at that early stage be barred from pursuing a claim for contributory 
copyright infringement premised on a theory of inducement or provision of services 
tailored to infringement as to the stayed portion of its case.  Similarly, Ziff Davis has

elected not to pursue its active trademark dilution claim with respect to models within 
the scope of the multidistrict litigation, but OpenAI cannot leverage that election into a 
de facto ruling on the merits of Ziff Davis’s stayed trademark dilution claims with 
respect to other models.  Ziff Davis explains that it has chosen to withdraw its live 
trademark dilution claims because, in its view, “the record developed during the active 
portion of the case presents a mixed picture on dilutive uses of the MASHABLE mark 
by the [in scope] Models, not because the evidence fails to support the fame of the 
mark,” and asserts that “there is evidence in the record already to suggest additional 
evidence may be adduced to support a trademark dilution claim” based on the out-of- 
scope models.  (Dkt. No. 1651 at 6-7.)  This is an adequate explanation that justifies 
permitting Ziff Davis’s requested dismissal of the stayed trademark dilution claims 
without prejudice. 
   Accordingly, 
   1.  OpenAl’s motion for judgment on the pleadings pursuant to Federal Rule of 
      Civil Procedure 12(c) dismissing Ziff Davis’s contributory copyright 
      infringement claim is denied as moot. 
   2.  Ziff Davis’s cross motion requesting leave to file  a Second Amended Complaint 
      dismissing its contributory copyright infringement, federal trademark dilution, 
      and state-law trademark dilution claims is decided as follows: 
         a.  Ziff Davis’s contributory copyright infringement claim that has been 
            stayed and its federal and state-law trademark dilution claims that have 
            been stayed —i.e., those claims that concern the models 01, 01 mini, o1- 
            pro, GPT 4.1, GPT-4.5, 03, 03-mini, 04-mini, and GPT-5—are dismissed 
            without prejudice. 
         b.  Ziff Davis’s active “material contribution” contributory copyright 
            infringement claim and active federal and state-law trademark dilution 
            claims are dismissed with prejudice. 
   Ziff Davis is directed to file an amended complaint in conformity with this Order 
within fifteen days. 
Dated:  New York, New York 
      August 6, 2026 
                                   SO ORDERED: 

                                   Sidney   I. Stein, U.S.D.J. 
                                      =