Weekend Warrior Clothing, LLC v. Google, LLC

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
WEEKEND WARRIOR CLOTHING,
LLC,
Plaintiff,
v.
GOOGLE, LLC,
Defendant.
Case No. 1:25-cv-668
JUDGE DOUGLAS R. COLE
OPINION AND ORDER
Defendant Google, LLC, moves to dismiss (Doc. 16) Plaintiff Weekend Warrior
Clothing, LLC’s, Complaint (Doc. 1) alleging direct and contributory copyright
infringement. After reviewing the motion and several rounds of supplemental
briefing, the Court concludes that Weekend Warrior fails to plausibly allege either
claim. Thus, the Court GRANTS Google’s motion.
BACKGROUND1
A. 	Weekend Warrior.
Weekend Warrior is an online clothing company that sells “holiday-based,
patriotic, pop-culture and humor-focused designs.” (Doc. 1, #1). Its designs have
proven to be quite popular, and Weekend Warrior now sells “thousands of t-shirts
with annual revenue in the seven figures.” (Id.). To protect its brand, Weekend
1 Because this matter is before the Court on Defendant’s Motion to Dismiss (Doc. 16), the
Court must accept the well-pleaded allegations in the Complaint as true. Bassett v. Nat’l
Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). So while the Court relies on the
Complaint’s allegations to recount the case’s background, it reminds the reader that they are
just that—allegations.
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Warrior has copyrighted 58 of its designs as of the time of filing. (Id. at #6–9; see
Doc. 1-1 (copyright certificates and design photos)).2
This popularity, however, has also led to some copyright infringement issues.
Weekend Warrior claims that its “success attracted copycats who steal Weekend
Warrior’s popular designs to make a quick dollar, selling lower quality infringing
goods at a cheaper price point.” (Id. at #2). As relevant here, those third-party vendors
sell the allegedly infringing t-shirts on other websites, and those products’ listings
appear on Google’s website when potential consumers search for goods. (Id. at #2–3).
B. 	Google’s Shopping Ads Program.
Weekend Warrior claims this problem results from Google’s Shopping Ad
service. Weekend Warrior provides some details about this program in its complaint,
but Google provides much more detail in its Motion to Dismiss (Doc. 16). Weekend
Warrior does not seem to dispute many of those details, so the Court draws on
Google’s descriptions as well.
In general, when a user searches on Google’s search engine, the top results
may be “sponsored” products available for purchase. Weekend Warrior includes an
example of how results appear for its Bad Day to Be a Beer shirt:
2 At the time of the Complaint, Weekend Warrior had two designs pending registration:
George Rizzington and Abe-Rizz-Ham Lincoln. (Doc. 1, #9 n.1).
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(Doc. 1, #4). For a product to appear in that sponsored list, the underlying “merchant,”
as Google calls them, pays for Google’s Shopping Ads program. (Id. at #9–10). First,
the merchants submit product data to Google’s Merchant Center. (Id.; Doc. 16, #215–
16). That is, they provide “business information, … information about products from
its website, and link[s] to its e-commerce store,” as well as “product information
including title, price, availability, and brand.” (Doc. 16, #215–16). The Shopping Ads
service uses that data to determine when to “match a user’s search to [the merchant’s]
ads, making sure to show the most relevant products.” (Doc. 1, #10 (quoting Google’s
support page)).3 As seen above, crucially, the sponsored product advertisement shows
a picture of the product. (Id. at #4, 11).
3 Weekend Warrior included a URL link for the support page, but that link no longer works.
(Doc. 1, #10 n.2).
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Shopping Ads likely “provides the merchants a competitive advantage over
competitors who are lower on the page.” (Id. at #9). To use Google’s words, “by the
time [a user] clicks on the [sponsored] ad, she has a good sense of the product and its
cost, which puts her further down the purchasing funnel compared to the average
web user.” (Id. at #10). Of course, merchants pay for this advantage. (Id.). It is unclear
exactly what the fee structure is, but Weekend Warrior alleges merchants pay a fee
every time a customer clicks on the sponsored product. (Id.).
Because this case involves the alleged “display” of the purportedly infringing
product, the Court dives further into the technical details. Google explains the process
for how images appear as follows:
Merchants also supply an “image link” for advertised products—an
embedded text link … that will use HTML instructions to direct a user’s
browser to retrieve a copy of the image of the merchant’s product at the
merchant’s third-party website and display that image on the user’s
desktop as part of a Shopping Ad.
(Doc. 16, #216). In other words, Google does not seek out the images; all of the
information, including the image, comes from the merchant. Google does not handle
any product fulfillment either. “When a user clicks on a merchant’s Shopping Ad
displayed in response to the user’s search, the product link supplied by the merchant
and included in the Shopping Ad takes the user to the product’s landing page on the
merchant’s third-party website.” (Id.). If the user decides to purchase the product, it
orders the product and pays on the third-party website. (Id.).
Additionally, Google alleges that the merchants agree to its terms of service
when they create a Shopping Ads account. (Id.). Those terms of service include
restrictions on advertising copyrighted content. (Id. at #216–17; see Google Shopping,
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Google 	Transparency 	Center, 	https://transparency.google/intl/en_us/our-policies/
product-terms/google-shopping/ [https://perma.cc/8W2M-H8SP]). When merchants
violate these policies, Google claims it removes the associated Shopping Ads. (Doc.
16, #216). Weekend Warrior heavily disputes that claim. (See Doc. 1, #10–11).
C. 	The Infringement.
Weekend Warrior claims merchants that are selling infringing products take
advantage of this Google service to Weekend Warrior’s detriment. Specifically, it
contends that it “discovered substantial quantities of exact copies of [its] [d]esigns
being displayed in the Shopping Ads section.” (Id.). Moreover, the allegedly infringing
products appear in the Google search returns before Weekend Warrior’s website,
www.officialusadrinkingteam.com. (Id.; see id. at #4 (showing sponsored results for
Bad Day to Be a Beer shirt that do not include Weekend Warrior’s website)). Weekend
Warrior further claims that potential customers buy its designs from those cheaper
infringers’ websites instead of from Weekend Warrior’s, and as a result those
consumers “never becom[e] loyal Weekend Warrior customers.” (Id. at #4).
To combat what it perceives as rampant infringement, Weekend Warrior
notified 	Google 	on 	several 	occasions 	“via 	Google’s 	instructions 	for 	submitting
takedown notifications under the Digital Millenium Copyright Act.” (Id. at #10).
Google responded that it would take down the infringing material on some occasions,
but Weekend Warrior maintains that Google did not follow through on the removal.
(Id. at #10, 12–13; Doc. 1-2 (emails from Google)). So the infringing product ads
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remained visible. (Doc. 1, #10–11). Other times, though, Google would not respond to
the notification at all. (Id. at #10).
D. 	Procedural History.
Tired of this lack of action, Weekend Warrior sued Google on September 11,
2025. (Doc. 1). It asserted claims for direct and contributory copyright infringement
based on the display of the image of the infringing products. (Id. at #14–16). Weekend
Warrior requests injunctive relief to stop Google from displaying the infringing
images, as well as compensatory and statutory damages. (Id. at #16–17). It has not
sought relief from the underlying merchants.
Two months later, on November 24, 2025, Google filed the instant Motion to
Dismiss (Doc. 16). There, it argues that it did not commit direct or contributory
copyright infringement because (1) under the server test, it did not store and then
display a copy of Weekend Warrior’s designs; (2) it did not engage in any volitional
conduct to cause the purported infringement; and (3) Weekend Warrior cannot show
Google 	contributed 	to 	any 	infringement. 	(Id. 	at 	#220–30). 4 	Weekend 	Warrior
responded, (Doc. 19), and Google replied, (Doc. 20). Since then, Google has requested
leave to file supplemental authorities on three occasions. (Docs. 21, 26, 32). It sought
to 	bring 	to 	the 	Court’s 	attention 	the 	new 	Supreme 	Court 	decision 	in 	Cox
Communications, Inc. v. Sony Music Entertainment, 146 S. Ct. 959 (2026), discussing
4 Google alternatively argued that the Court should stay the case until the Supreme Court
issued its decision in Cox Communications, Inc. v. Sony Music Entertainment. (Doc. 16, #230–
33). The Supreme Court has since issued its decision, as Google highlighted in its Notice of
Supplemental Authority (Docs. 21, 23); see Cox Commc’ns, Inc. v. Sony Music Ent., 146 S. Ct.
959 (2026). So the Court need not consider this alternative request.
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contributory liability, (Doc. 21); the Supreme Court’s recent decision in Hikma
Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., 146 S. Ct. 1391, addressing
contributory patent infringement, (Doc. 26); and three recent district court decisions
applying 	those 	new 	Supreme 	Court 	precedents, 	(Doc. 	32). 	Weekend 	Warrior
responded to the first notice regarding Cox Communications, (Doc. 24), to which
Google replied, (Doc. 25). For the later two notices of supplemental authority,
however, Weekend Warrior voiced opposition and briefly argued against those
authorities. (Docs. 29, 35). The Court granted leave for all three requests. (Docs. 22,
30, 36).
With that, the matter is ripe for the Court’s review.
LEGAL STANDARD
To survive a motion to dismiss under Federal Civil Procedure 12(b)(6), a
“complaint must present sufficient facts to ‘state a claim to relief that is plausible on
its face.’” Robbins v. New Cingular Wireless PCS, LLC, 854 F.3d 315, 319 (6th Cir.
2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In assessing
plausibility, the Court “construe[s] the complaint in the light most favorable to the
plaintiff, accept[s] its allegations as true, and draw[s] all reasonable inferences in
favor of the plaintiff.” Bassett, 528 F.3d at 430. But that grace extends only so far.
The 	Court 	cannot 	accept 	“naked 	assertions,” 	legal 	conclusions, 	or 	“formulaic
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recitation[s] of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555, 557).
LAW AND ANALYSIS
Weekend Warrior asserts both direct and contributory copyright infringement
claims. The Court starts with the direct infringement claim. Because the Court finds
that Weekend Warrior did not plausibly allege that Google engaged in volitional
conduct, the Court dismisses that claim. Turning to the contributory infringement
claim, the Court finds that Weekend Warrior plausibly alleged neither that Google
induced or encouraged copyright infringement on its Shopping Ads platform, nor that
Shopping Ads is incapable of substantial lawful use. Given the Supreme Court’s
recent opinion in Cox Communications, Weekend Warrior has failed to state a claim
for contributory copyright infringement. So the Court grants Google’s Motion to
Dismiss (Doc. 16), and it dismisses the entirety of Weekend Warrior’s Complaint (Doc.
1) without prejudice.
A. 	Direct Infringement.
The Copyright Act provides protection for “original works of authorship fixed
in any tangible medium of expression.” 17 U.S.C. § 102(a). That protection entails
certain exclusive rights for the copyright holder, including the right “to display the
copyrighted work publicly.” Id. § 106(5). Copyright infringement, then, “occurs when
anyone ‘violates any of the exclusive rights of the copyright owner.’” Bridgeport
Music, Inc. v. WM Music Corp., 508 F.3d 394, 398 (6th Cir. 2007) (citing 17 U.S.C.
§ 501(a)). To establish a copyright infringement claim, a plaintiff must plausibly
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allege two elements: “(1) ownership of a valid copyright; and (2) copying of constituent
elements of the work that are original.” Id. (quoting Stromback v. New Line Cinema,
384 F.3d 283, 293 (6th Cir. 2004)).
In its motion to dismiss, Google does not dispute Weekend Warrior’s ownership
of the asserted copyrights. Rather, its arguments turn on whether Google can be held
responsible for the copying, as opposed to the third-party merchants who provide the
actual images. Google first argues that it did not violate the right to display Weekend
Warrior’s copyrights because, under the server test, the way the allegedly infringing
images technically appear within a user’s browser does not equate to Google
“displaying” the images. (Doc. 16, #220–22). Second, Google argues that, regardless
of the display issue, it did not engage in any volitional conduct, which it contends is
necessary to show that it caused the infringing display. (Id. at #222–25).
In response, Weekend Warrior argues that neither the Sixth Circuit nor
Supreme 	Court 	have 	required 	either 	the 	server 	test 	or 	the 	volitional-conduct
requirement, so the Court should not apply those tests here. (Doc. 19, #255–64).
Beyond that, if the Court decides to apply the volitional-conduct requirement,
Weekend Warrior maintains that Google is not a mere passive participant in the
infringement but rather actively engages by “digitally locat[ing] infringing works on
the google site based on the amount of money paid by infringers.” (Id. at #261).
Further, 	Weekend 	Warrior 	argues 	Google 	has 	the 	capacity 	to 	remove 	the
infringement, was aware of the specific infringement here, and yet “either ignores the
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notice [of infringement] or attempts to deceive[] the copyright owner into believing
the infringing work has been taken down.” (Id. at #261, 263).
The 	Court 	starts 	with 	Google’s 	argument 	on 	the 	volitional-conduct
requirement. Because the Court concludes that Weekend Warrior has not plausibly
alleged that Google engaged in any volitional conduct, the Court declines to address
the applicability of the server test.
This Court recently addressed the volitional-conduct requirement in another
case involving Weekend Warrior. See Weekend Warrior Clothing, LLC v. Amazon.com
Services, LLC, No. 1:23-cv-752 (S.D. Ohio) (Doc. 111). Because the Court explains the
background and contours of the volitional-conduct requirement in full there, the
Court offers only a brief overview here. To start, the Court determined that such a
requirement plays a useful role in distinguishing between direct liability and
secondary liability, particularly in internet-provider cases. Id. In recent decades,
courts have struggled with “the authorship of the infringing conduct” in cases
involving online platforms and third parties. Cartoon Network LP, LLLP v. CSC
Holdings, Inc., 536 F.3d 121, 130 (2d Cir. 2008). Generally, “[d]irect infringement
claims hold the specific infringer liable,” Tomelleri v. SunFrog, LLC, 721 F. Supp. 3d
566, 572 (2024), whereas secondary infringement claims impose “liability for actions
of third parties,” BWP Media USA, Inc. v. T & S Software Assocs., Inc., 852 F.3d 436,
439 (5th Cir. 2017) (citing Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545
U.S. 913, 930 (2005)). So the volitional-conduct requirement arose to help demarcate
the line between the two. In other words,
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The distinction between direct and secondary liability would collapse if
there were not a clear rule for determining whether the defendant
committed 	the 	infringing 	act. 	The 	volitional-conduct 	requirement
supplies 	that 	rule; 	its 	purpose 	is 	not 	to 	excuse 	defendants 	from
accountability, but to channel the claims against them into the correct
analytical track.
Am. Broad. Cos., Inc. v. Aereo, Inc., 573 U.S. 431, 455 (2014) (Scalia, J., dissenting).
Courts can make that distinction by analyzing causation, i.e., whether the defendant
internet 	service 	provider 	could 	be 	considered 	the 	proximate 	cause 	of 	the
infringement. See Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 2017)
(volitional conduct “simply stands for the unremarkable proposition that proximate
causation historically underlines copyright infringement liability no less than other
torts”). So “[a]lthough copyright is a strict liability statute, there should still be some
element of volition or causation which is lacking where a defendant’s system is merely
used to create a copy by a third party.” Religious Tech. Ctr. v. Netcom On-Line
Commc’ns Servs., 907 F. Supp. 1361, 1370 (N.D. Cal. 1995). When that proximate
causation is lacking, then, the online platform cannot be directly liable.
Admittedly, Weekend Warrior is correct in saying that the Sixth Circuit has
not adopted the volitional-conduct requirement, so the Court is not required to apply
it here. But the Sixth Circuit has not rejected that requirement either, and “several
district courts within the Sixth Circuit classify the Sixth Circuit’s decision in
Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), as implicitly
adopt[ing] the requirement.” Tomelleri, 721 F. Supp. 3d at 572. Moreover, “every
circuit to address this issue has adopted some version of Netcom’s reasoning and the
volitional-conduct requirement.” BWP Media, 852 F.3d at 440 (collecting cases).
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As the Court further explains in the Weekend Warrior–Amazon decision
Weekend Warrior Clothing, LLC, No. 1:23-cv-752 (S.D. Ohio) (Doc. 111), online
platforms generally do not engage in volitional conduct when third-party users
upload or submit the infringing content and the platform only implements an
automated process. See, e.g., Perfect 10, 847 F.3d at 670 (“Perfect 10 provides no
evidence showing Giganews exercised control (other than by general operation of a
Usenet service); selected any material for upload, download, transmission, or storage;
or instigated any copying, storage, or distribution.”). Rather, “when passively storing
material at the direction of users in order to make that material available to other
users upon their request, [internet service providers], do not ‘copy’ the material in
direct violation of § 106 of the Copyright Act.” CoStar Grp., Inc. v. LoopNet, Inc., 373
F.3d 544, 555 (4th Cir. 2004). Such “automatic copying, storage, and transmission of
copyrighted materials, when instigated by others,” does not constitute volitional
conduct. Id.
Selection 	of 	the 	infringing 	content, 	however, 	crosses 	the 	threshold. 	See
Flowers, Inc. v. Springhill Floral & Gift Supply Co., No. 5:24-cv-590, 2025 WL
3003931, at *5 (N.D. Ohio Oct. 27, 2025). When the provider selects the materials, it
no 	longer 	passively 	receives 	materials from 	third 	parties 	but 	now 	is 	actively
participating in the infringement. Id.; see also Aereo, 573 U.S. at 455 (Scalia, J.,
dissenting) (The “selection and arrangement by the service provider constitutes a
volitional act directed to specific copyrighted works.”).
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Here, Weekend Warrior argues that Google engages in volitional conduct when
it “digitally locates infringing works on the google site based on the amount of money
paid by infringers, including known infringers.” (Doc. 19, #261). On top of that,
Weekend Warrior’s maintains that Google’s alleged refusal to respond to notices of
infringement also constitutes volitional conduct. (Id.).
The Court finds that Google did not engage in volitional conduct because it did
not participate in the selection of the allegedly infringing products’ advertisements.
As 	even 	Weekend 	Warrior 	describes 	the 	Shopping 	Ads 	program, 	third-party
merchants submit their product data and any other details to Google. (Doc. 1, #9–10).
Google does not seek out or curate the available products or their information. For
the images specifically, the merchants provide the HTML “instructions to direct a
user’s browser to retrieve a copy of the image of the merchant’s product at the
merchant’s third-party website.” (Doc. 16, #216). The third-party merchant hosts the
actual allegedly infringing image. So, again, Google does not select or even retrieve
the image from the third-party websites.
Weekend Warrior seems to be getting at how, in a sense, Google chooses which
products are shown to a third-party user in response to that user’s search. To use
Weekend Warrior’s example, when a person searches for a Bad Day to Be a Beer shirt,
Google supplies certain sponsored results. (See Doc. 1, #4). To a certain extent, then,
Google determines which of the submitted merchants’ products appear in those
results instead of others. But this stretches the definition of selection too far into the
automated-process space. This case is thus different from Flowers. The defendant
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there specifically chose which products it wanted from the manufacturer and curated
the products available for sale in its catalogs. 2025 WL 3003931, at *5. Instead,
“Google’s system uses the campaign and bid information along with the product data
submitted in merchant Center to automatically ‘match a user’s search to a merchant’s
ads, making sure to show the most relevant products.’” (Doc. 16, #216 (brackets
omitted) (emphasis added)). Indeed, “[t]here is nothing in the amended complaint to
suggest that these acts were anything other than part of an automated process.”
White v. DistroKid, 766 F. Supp. 3d 451, 461 (S.D.N.Y. 2025).
Weekend Warrior for its part does not seem to dispute that this is an automatic
process. It certainly does not claim that a human employee selects the sponsored
results in response to every Google user’s query. See id. (“It would be pure speculation
to conclude from the allegations that there was human involvement in the three steps
identified by [the plaintiff].”). And the fact that at some point Google determined the
sponsored results would always appear at the top of the page, thus “digitally
locat[ing]” them, does not transform the Shopping Ads program from an automated
process into an active one. (See Doc. 19, #261). Google chooses the high-level criteria
by which products are selected for display on its Ads platform; but nobody here alleges
that Google has a hand in making each individualized selection.
Turn to Weekend Warrior’s next argument regarding Google’s response to
reports of infringement. Even if Google ignored the infringement notices, it did not
necessarily engage in volitional conduct to cause the infringement in the first place.
(See id.). “[V]olition requires a relationship between the system owner and the
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copyrighted work that will permit the owner to prevent infringement of the work
without the necessity of monitoring the behavior of third parties.” Tomelleri II, 721 F.
Supp. 3d at 576 (quoting Robert C. Denicola, Volition and Copyright Infringement, 37
Cardozo L. Rev. 1259, 1276 (2016)); see also Sony, 464 U.S. at 446 (“Third party
conduct 	would 	be 	wholly 	irrelevant 	in 	an 	action 	for 	direct 	infringement 	of
respondents’ copyrights.”). Responding to notices of infringement squarely falls into
the category of “monitoring the behavior of third parties.” Id. Direct liability is not
the appropriate framework, then.
To briefly respond to Weekend Warrior’s last argument, it states that “[t]he
volitional conduct rule is meant to prevent against a ‘gotcha’ claim against a passive
intermediary that has no knowledge of infringement.” (Doc. 19, #261). Here, Weekend
Warrior goes on to say, Google has knowledge of infringement, so there is no “gotcha.”
(Id.). But that argument misses the point of the volitional conduct rule. As Weekend
Warrior acknowledges, copyright infringement is a strict liability claim, meaning
knowledge of the infringing activity, whether actual or constructive, is irrelevant. (Id.
at #260). Accordingly, the volitional-conduct rule is not about knowledge, but rather
about causation. See Perfect 10, Inc., 847 F.3d at 666. And whatever Weekend Warrior
might say about Google’s knowledge, it has not alleged that Google was the direct
cause of the infringement here.
In sum, Weekend Warrior has not plausibly alleged Google engaged in
volitional conduct. Thus, the Court must dismiss its direct infringement claim.
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Because Weekend Warrior potentially could cure this deficiency, though, the Court
offers an opportunity for it to move for leave to amend its complaint.
B. 	Contributory Infringement.
Weekend Warrior also brings a contributory copyright infringement claim.
(Doc. 1, #15–16). “The Copyright Act does not expressly render anyone liable for
infringement committed by another,” but the Supreme Court has consistently
recognized contributory infringement claims as “merely a species of the broader
problem of identifying the circumstances in which it is just to hold one individual
accountable for the actions of another.” Sony Corp. of Am. v. Univ. City Studios, Inc.,
464 U.S. 417, 434–35 (1984). As Google noted in its supplemental briefing, the
Supreme Court issued a decision addressing contributory liability this past term: Cox
Communications, Inc. v. Sony Music Entertainment, 146 S. Ct. 959 (2026). (See Def.’s
Mot. for Leave to File Supplemental Briefing, Doc. 21; Order, Doc. 22; Def.’s Memo.
in Support, Doc. 23). While the Supreme Court upheld, at least conceptually, a
copyright holder’s ability to pursue contributory infringement claims even in the
absence of an express statutory hook, that Court also noted it was “loath to expand
such liability beyond [its] precedents.” Cox Commc’ns, 146 S. Ct. at 967. So this Court
will adopt that same approach.
Contributory infringement occurs when the service provider “intended its
service to be used for infringement.” Id. at 964. A plaintiff can establish such intent
in two ways: (1) “it can show that a party affirmatively ‘induc[ed]’ the infringement,”
or (2) “it can show that the party sold a service tailored to infringement.” Id. (quoting
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Grokster, 545 U.S. at 930, 942). For the former, “[a] provider induces infringement if
it actively encourages infringement through specific acts.” Id. at 967. The Cox court
looked to Grokster as an example of such inducement. Id. In that case, the Supreme
Court had held two file-sharing companies liable because the companies specifically
marketed their software’s infringement capabilities, and “[t]he ‘principal object’ of
their business models ‘was use of their software to download copyrighted works.’” Id.
(quoting Grokster, 545 U.S. at 926). Alternatively, to show the requisite tailoring to
infringement, a plaintiff must establish the provider’s service is “not capable of
‘substantial’ or ‘commercially significant’ noninfringing uses.” Id. (quoting Grokster,
545 U.S. at 942).
Significantly, the Court in Cox also expressly identified two categories that do
not constitute contributory infringement. First, “‘[t]here is no precedent in the law of
copyright for’ for liability based only ‘on the fact that [the defendant] has sold
equipment with constructive knowledge of the fact that its customers may use that
equipment to make unauthorized copies of copyrighted material.’” Id. at 968 (quoting
Sony, 464 U.S. at 439). And second, “a court would be unable to find contributory
infringement liability merely based on a failure to take affirmative steps to prevent
infringement.” Id. (quoting Grokster, 545 U.S. at 939 n.12).
With that understanding, the Supreme Court concluded that the internet
service provider there, Cox, could not be contributorily liable because it neither
induced nor encouraged infringement, and its service was capable of substantial
noninfringing uses. Id. And in terms of Cox’s alleged failure to police infringing
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activity, the Supreme Court observed that “[h]olding Cox liable merely for failing to
terminate Internet service to infringing accounts would expand secondary copyright
liability beyond our precedents.” Id.
Here, Weekend Warrior seeks to do exactly what the Supreme Court rejected
in Cox—hold Google accountable for allegedly possessing knowledge of infringement
and failing to take adequate steps to stop it. Given Cox, that argument simply does
not work. Nor do Google’s activities fall within the two recognized categories of
contributory 	infringement—Google 	neither 	induces 	infringement 	by 	others 	nor
tailors its service to ease infringement. Weekend Warrior has not alleged Google
“promot[ed], market[ed], [or] inten[ded] to promote” infringement on its platform. Id.
Nor can Weekend Warrior deny that Google’s Shopping Ads program is “capable of
substantial lawful use.” Id.
Weekend Warrior attempts to claim inducement by alleging that merchants
pay Google to showcase their products in the sponsored results section at the top of
the search results, and that Google “promotes the infringing products by pushing the
products to those customers most likely to buy them.” (Doc. 24, #353–54). But Google
generally 	“promoting” 	products 	in 	sponsored 	results 	does 	not 	equal 	Google
“promoting” Shopping Ad’s ability to be used for infringing activities. That is,
Weekend Warrior has not alleged that Google somehow distinguishes between
infringing and non-infringing products in Google’s automatic process to populate the
sponsored results. It does not argue that out of the products submitted to Google’s
Merchant Center, it somehow privileges the infringing ones. Weekend Warrior may
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not like that various sponsored results appear ahead of its own website, but that is
not because Google induced the infringement or that it somehow “tailored” the
Shopping Ads program specifically for use by infringers.
At best, Weekend Warrior argues that Google’s failure to more aggressively
remove infringing products allows them to proliferate, or potentially even emboldens
the infringers. That theory of liability, however, assumes that Google could be
contributorily liable for failing to affirmatively prevent infringement or by failing to
adequately terminate infringer’s merchant accounts. But, as noted, that theory
“conflict[s] with [the Supreme] [C]ourt’s repeated admonition that contributory
liability cannot rest only on a provider’s knowledge of infringement and insufficient
action to prevent it.” Cox Commc’ns, 146 S. Ct. at 969.
Finally, 	Weekend 	Warrior 	offers 	three 	cases 	upholding 	contributory
infringement claims in the wake of Cox Communications that it claims supports its
position. (Doc. 35). But the technology at issue in those cases is easily distinguishable
from Google’s Shopping Ads platform. In the first case, the district court awarded
default judgment on a contributory infringement claim where the defendant offered
subscription services to “connect subscribers to unauthorized streams of Plaintiffs’
Copyrighted Works.” Amazon Content Servs. LLC v. Weibley, No. 1:25-cv-388, 2026
WL 1683119, at *7–8 (M.D. Pa. June 10, 2026). The court found that Plaintiffs
sufficiently alleged an intent for the service to be used to infringe based on the
defendants’ provision of “cheap, unauthorized access,” lack of any attempt to gain
authorization, and their “attempt[] to conceal that access.” Id. at *8. The second case
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involved a form of technology called BitTorrent, “a file-sharing protocol designed to
quickly distribute large files over the internet by allowing users to connect to other
users’ computers to ‘simultaneously download and upload pieces of [a] file from and
to other users.’” Strike 3 Holdings, LLC v. Meta Platforms, Inc., __ F. Supp. 3d __,
2026 WL 1697633, at *1 (N.D. Cal. 2026). The defendant, Meta Platforms, did not
own the BitTorrent technology; rather, it created algorithms designed to download
the plaintiff’s films and distribute them on BitTorrent. Id. The district court
determined that the algorithms and related software were “tools tailored to infringe
copyrighted 	works 	using 	BitTorrent,” 	so 	plaintiff 	had 	plausibly 	alleged 	its
contributory infringement claim. Id. at *9. Likewise, in the third case, plaintiffs
alleged the defendant, NVIDIA Corporation, designed its Large Language Models to
train on pirated copies of the plaintiffs’ copyrighted books. Nazemian v. NVIDIA
Corp., No. 24-cv-1454, 2026 WL 1229583, at *1 (N.D. Cal. May 5, 2026). From there,
the plaintiffs alleged that NVIDIA “provided various scripts and tools that enabled
its customers to download and process ‘the Pile,’ a dataset containing [the plaintiffs’]
copyrighted books.” Id. The Nazemian court found that “designing a tool specifically
to 	promote 	the 	infringement” 	and 	offering 	such 	tools 	to 	customers 	“actively
encourage[d] infringement” of the plaintiffs’ copyrighted works present in the Pile.
Id. at *6. Indeed, those tools “had no purpose except to infringe.” Id.
In sum, the post-Cox district court cases Weekend Warrior cites do not aid its
cause. Weekend Warrior simply has not provided any factual allegations here that
would suggest that Google had the same intent for users to download or stream
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copyrighted content when it designed the Shopping Ads service. Accordingly, the
Court must also dismiss Weekend Warrior’s contributory infringement claim.
CONCLUSION
For the reasons discussed above, the Court GRANTS Google’s Motion to
Dismiss (Doc. 16). Thus, the Court DISMISSES WITHOUT PREJUDICE Weekend
Warrior’s Complaint (Doc. 1). Because Weekend Warrior potentially could cure the
deficiencies identified above, the Court will retain jurisdiction of this matter for 30
days to allow Weekend Warrior an opportunity to move for leave to amend its
complaint, attaching the proposed amended complaint, if it can address the pleading
deficiencies set forth above. Should Weekend Warrior fail to seek leave, the Court will
enter judgment at that time dismissing the matter without prejudice.
SO ORDERED.
October 14, 2026
DATE 	DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE
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LAS R. COLE
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