S.D.N.Y. denies Cengage plaintiffs' reconsideration motion on DMCA policy discovery after Google dropped its safe harbor defense

What the court decided

The document is a five-page Order, Document 1264 in No. 1:24-cv-04274 (JLR) (BCM), U.S. District Court for the Southern District of New York, signed by United States Magistrate Judge Barbara Moses and dated October 19, 2026. It denies the plaintiffs' May 22, 2026 motion (Dkt. 970) for reconsideration or clarification of the court's May 8, 2026 order (the Vacatur Order, Dkt. 923). (Order pp. 1 to 2, 5.)

Background

The order says a December 22, 2025 Sampling Order (Dkt. 472) had required Google to produce voluminous discovery about its treatment of takedown notices for 300 randomly selected domains unrelated to the plaintiffs' 7,359 works in suit, and that the Sampling Order rested entirely on Google's safe harbor defense under the Digital Millennium Copyright Act, 17 U.S.C. 512. On March 30, 2026, shortly after the Supreme Court decided Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. 583 (2026), Google said it was withdrawing that defense, and on April 14, 2026 it moved to vacate the Sampling Order. The court granted that motion on May 8, 2026. It reasoned that without the safe harbor defense, discovery about domains unrelated to the works in suit, or to the "pirates" the order describes as using the Google Shopping platform to sell infringing copies of the plaintiffs' works, did not meet the relevancy test of Federal Rule of Civil Procedure 26 and would not be proportional to the needs of the case. (Order p. 1.)

The motion

The plaintiffs did not ask the court to set aside the Vacatur Order or reinstate the Sampling Order. They asked for reconsideration or clarification of one sentence: that once Google withdrew the safe harbor defense, discovery designed to show whether Google followed its own DMCA policy is no longer relevant to the parties' claims and defenses. They argued the sentence misreads 17 U.S.C. 512(l) and the caselaw the order discussed, and that it could create a "sword-and-shield" problem if Google relies on its DMCA policy to show it sought to avoid facilitating infringement while the plaintiffs cannot show the policy was a "sham." Google argued that disagreement with an order's reasoning, but not its conclusion, is not a basis for reconsideration, that the Vacatur Order correctly reads the DMCA and recent caselaw including Cox on contributory copyright claims, and that the sword-and-shield argument rests on speculation about summary judgment or trial. (Order pp. 2 to 3.)

The court's reasons

Applying S.D.N.Y. Local Civil Rule 6.3 and the "strict" standard of Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995), the court gave three reasons. The plaintiffs identified no authority the court overlooked and disagreed only with its reading of the authorities. They identified nothing that might alter the decision to vacate the Sampling Order, since they did not ask the court to change that decision. And they identified no manifest injustice, because the Vacatur Order limited discovery, in part on proportionality grounds, but did not rule on the admissibility of evidence at summary judgment or trial. The order says that if the District Judge agrees that evidence about Google's DMCA policy and its implementation is still critical to liability, willfulness, and damages, she will be free to admit it, and that if Google tries to take unfair advantage of the Vacatur Order at trial, the District Judge will be free to preclude that argument. (Order pp. 3 to 5.)

A footnote says the plaintiffs had already taken discovery on how Google implemented its DMCA policy across the 1,500 domains that allegedly infringed the works in suit, that Google says it produced more than a terabyte of data on those domains, that the plaintiffs later took testimony from a Google corporate witness designated under Federal Rule of Civil Procedure 30(b)(6) on Google's DMCA program, and that the court directed Google to give more 30(b)(6) testimony after the plaintiffs said the witness gave too little detail about what the order calls Google's failure, for a period of time, to enforce a significant aspect of its DMCA policy. (Order pp. 4 to 5 n.2.)