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In a lawsuit filed at a New York court in June 2024, publishers including Cengage Learning, Macmillan Learning, Elsevier, and McGraw Hill, bemoaned Google\u2019s \u2018systemic and pervasive advertising\u2019 of infringing copies of their copyrighted textbooks.<\/p>\n
The complaint alleged that Google Shopping ads placed by third parties used unauthorized images of the publishers\u2019 genuine textbooks to promote sales of pirated copies; a \u2018bait-and-switch\u2019 by Google, the publishers said. <\/p>\n
Further allegations of infringement concerned Google search results that allegedly returned piracy-heavy results in response to searches for the publishers\u2019 products, rendering the original content more difficult to find. The publishers also claimed that takedown notices sent to Google had little effect. Notifications identifying alleged repeat infringers didn\u2019t result in account suspensions either.<\/p>\n
In a recent motion to dismiss, Google successfully argued that the publishers\u2019 vicarious liability claim should be dismissed due to the absence of two key elements; the right and ability to supervise the infringing conduct and a direct financial interest in the same.<\/p>\n
Since the infringing conduct took place on third party sites, the court found that Google lacked the required ability to supervise or control, so couldn\u2019t be held vicariously liable. The publishers\u2019 contributory copyright infringement claim wasn\u2019t part of Google\u2019s motion to dismiss so that remained outstanding.<\/p>\n
On July 2, Google filed a comprehensive answer to the publishers\u2019 First Amended Complaint. Addressing the contributory infringement claim, Google accepts that the plaintiffs sent notices identifying URLs that they claimed infringed their copyrights in digital works. <\/p>\n
However, Google notes that its Shopping platform is primarily used for legal purposes, and it takes substantial steps to combat infringement, including enforcing its Terms of Service and providing the means for rightsholders to report infringing content. <\/p>\n
The system may not be perfect but, according to Google, perfection isn\u2019t the required standard when combating infringement. Equally, mere knowledge of abuse does not render Google a contributory infringer or liable for the actions of a minority of users who abuse Google\u2019s products for nefarious purposes.<\/p>\n
\u201cWere it otherwise, countless internet platforms and product manufacturers would essentially be held strictly liable simply for offering their products to users,\u201d Google notes.<\/p>\n
\u201cThe facts in this case will ultimately demonstrate that Plaintiffs\u2019 claims are meritless.\u201d<\/p>\n
In a letter to the court dated July 10, counsel for Google requests a stay in the current case.<\/p>\n
\u201cWe respectfully request that the Court stay this case pending the U.S. Supreme Court\u2019s decision in Cox Communications, Inc. v. Sony Music Entertainment\u2026.which will consider the standards for (i) contributory copyright infringement and (ii) willfulness under 17 U.S.C. \u00a7 504(c),\u201d the letter reads.<\/p>\n
As reported last month, Cox Communications successfully petitioned<\/a> the Supreme Court to review a Fourth Circuit ruling that held the ISP contributorily liable for the actions of subscribers who engaged in piracy.<\/p>\n Labels, including Sony and Universal, had previously secured a $1 billion verdict from a jury in Virginia. This verdict was based on Cox\u2019s knowledge of infringement, material contribution, and a $150,000 maximum statutory damages award per work for \u2018willful infringement.<\/p>\n Given the clear similarities to the Cox case pending at the Supreme Court, Google notes that a stay in the publishers\u2019 lawsuit is appropriate.<\/p>\n Google believes that the Supreme Court\u2019s decision will not only have an impact on the publishers\u2019 lawsuit, it could potentially determine the outcome. <\/p>\n \u201cThe core of Plaintiffs\u2019 case is their claim that Google is a willful contributory copyright infringer,\u201d the motion for stay continues. <\/p>\n \u201cGiven the centrality of the contributory infringement claim and Plaintiffs\u2019 intent to seek enhanced willfulness damages, the Supreme Court\u2019s decision in Cox will have a significant, and potentially dispositive, impact on the course of this litigation.\u201d<\/p>\n Google goes on to cite a petition<\/a> by the U.S. Solicitor General which overwhelmingly sided with Cox while urging the Supreme Court to take on the case. Google says the theory of liability in Cox is identical to the theory presented by the publishers.<\/p>\n \u201cPlaintiffs\u2019 theory of Google\u2019s liability is identical to the plaintiffs\u2019 theory in Cox: Plaintiffs say Google is liable for willful contributory copyright infringement because it continued to provide merchants with access to Google\u2019s Shopping platform after receiving notices of infringement,\u201d counsel for Google notes.<\/p>\n \u201cIf the Supreme Court ultimately agrees with the United States and rejects the Fourth Circuit\u2019s rule on these issues, that would undermine\u2014likely fatally\u2014Plaintiffs\u2019 theories of contributory liability and willfulness here. But regardless of what happens, the Supreme Court\u2019s eventual decision will shape the key issues presented in this case, including questions related to the scope of relevant fact and expert discovery.\u201d<\/p>\n Google believes that oral argument in the Cox matter \u201ccould be heard as early as the November sitting, with a possible decision a few months later.\u201d <\/p>\n Describing a few months delay as a modest postponement that could even offer \u201csignificant economies\u201d in the current case, Google says that the plaintiffs will not face \u201cany meaningful prejudice\u201d from a short delay.<\/p>\n Google\u2019s Motion for Stay Pending Supreme Court\u2019s Decision in Cox, is available here<\/a> (pdf)<\/em><\/p>\n From: TF<\/a>, for the latest news on copyright battles, piracy and more.<\/p>\nCore Claims of Willful Contributory Copyright Infringement<\/h2>\n
Identical Theory of Liability<\/h2>\n