Written by: Haim Ravia, Dotan Hammer
Robot.txt file is not a technological barrier.
Judge Sidney H. Stein of the Southern District of New York issued a remarkable ruling in the OpenAI copyright litigation relating to web scraping and AI training practices. In partially granting OpenAI’s motion to dismiss claims brought by digital publisher Ziff Davis, the court delivered a significant holding: robots.txt files do not constitute “technological measures that effectively control access” to copyrighted works under the DMCA.
Ziff Davis had argued that by including robots.txt directives instructing OpenAI’s web crawler GPTBot not to scrape its websites, and by OpenAI allegedly ignoring those instructions, OpenAI had “circumvented” a technological protection measure. Judge Stein rejected this theory on two grounds. First, robots.txt files do not “effectively control” access because they are merely requests, not barriers. As the court colorfully noted, robots.txt directives “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.” A web crawler need not apply any information, process, or treatment to gain access to content on pages with robots.txt files—it can access the content simply by “impertinently disregarding” the request.
Second, even if robots.txt files were technological measures, the court found that ignoring them does not constitute “circumvention” under the DMCA. Circumvention requires affirmatively disabling or voiding a technological control, akin to “breaking and entering (or hacking) into computer systems.” Merely disregarding instructions contained in robots.txt files falls short of this standard.
The court allowed several other claims to proceed to trial, including contributory copyright infringement, removal of copyright management information, and trademark dilution regarding the MASHABLE mark.
Liability of Internet access providers for user infringements
Meanwhile, the U.S. Supreme Court heard oral arguments in Cox Communications v. Sony Music Entertainment, a case arising from a $1 billion jury verdict against Cox for failing to terminate subscribers accused of repeated copyright infringement. The case presents fundamental questions about when providing internet service can constitute contributory infringement.
Cox’s counsel argued that the Fourth Circuit’s decision improperly held that a provider of basic communications infrastructure can be liable simply for not terminating enough accused infringers. Cox contended that contributory liability requires purposeful conduct to foster infringement—not mere knowledge combined with continued service provision. The U.S. Government also urged the Court to require proof of purpose rather than mere knowledge.
Several Supreme Court justices probed the implications of the competing standards. Justice Sotomayor questioned what incentive ISPs would have to cooperate with copyright holders if liability were eliminated, while Justice Jackson posed a hypothetical about selling internet service to a customer who openly admits addiction to infringement. Justice Barrett asked whether the same standard would immunize platforms knowingly hosting child trafficking. The case could significantly affect the DMCA’s safe harbor framework, which Cox acknowledged may become largely superfluous if purpose rather than knowledge becomes the governing standard. The Supreme Court’s decision is expected in June 2026.
Texas app store age verification law temporarily blocked.
In Texas, federal district court Judge Robert Pitman preliminarily enjoined Texas Senate Bill 2420, the App Store Accountability Act, which would have required age verification for all app downloads and parental consent for minors starting January 1, 2026. The Computer & Communications Industry Association, whose members include Apple, Google, and Amazon, challenged the law on First Amendment grounds.
SB 2420 imposed sweeping requirements on app stores and developers operating in Texas. Before anyone could download apps, stores would need to verify the user’s age using “commercially reasonable methods.” Minors would be required to affiliate with a verified parent account and obtain individualized parental consent for each download or in-app purchase—blanket consent was expressly prohibited. Developers would need to assign age ratings based on four state-defined categories and notify parents of any “material changes” to app functionality, user experience, or terms of service. Judge Pitman likened the scheme to “a law that would require every bookstore to verify the age of every customer at the door and, for minors, require parental consent before the child or teen could enter and again when they try to purchase a book.”
The court concluded that Texas failed to demonstrate that restricting access to virtually all mobile apps—from news applications to weather apps to mental health resources—was narrowly tailored to address concerns about children’s online safety. Judge Pitman noted the law was both over-inclusive, sweeping in vast amounts of protected speech, and under-inclusive, leaving the same content accessible through pre-installed apps or web browsers. The court also found provisions regarding “material changes” unconstitutionally vague. While acknowledging legitimate concerns raised by amici about children’s mental health, excessive screen time, and harmful content exposure, Judge Pitman emphasized that “however compelling the policy concerns, and however widespread the agreement that the issue must be addressed, the Court remains bound by the rule of law.”
Click here to read the court’s decision in Ziff Davis v. OpenAI.
Click here to read the U.S. Supreme Court’s docket in Cox Communications, Inc., v. Sony Music Entertainment.
Click here to read the court’s temporary injunction against the Texas App Store Accountability Act.
