In June 2024, major publishers, including Cengage Learning, Macmillan Learning, Elsevier, and McGraw Hill, filed a copyright lawsuit against Google in federal court in New York.
The companies accused the search giant of running Shopping ads for so-called “Pirate Sellers,” merchants who used Google’s platform to promote infringing copies of their textbooks.
The lawsuit has been narrowed significantly since it was first filed. Last June, Judge Jennifer L. Rochon dismissed the publishers’ vicarious copyright infringement claim and their alleged violations of New York General Business Law.
A trademark infringement claim and the core contributory copyright infringement claim survived. However, Google now argues that last month’s Supreme Court ruling in Cox Communications v. Sony Music Entertainment renders the remaining copyright claim legally viable.
Google: Cox Changes Everything
In a motion for partial judgment, filed at the Southern District of New York last week, Google argues that the publishers’ contributory copyright infringement claim rests entirely on a now-defunct theory.
Previously, some lower courts held that “”knowledge of” plus “material contribution” to infringing activities or others could be sufficient to be held liable for contributory copyright infringement. However, the new Supreme Court ruling narrowed this standard.
In Cox, the Supreme Court stated that contributory liability requires proof that the provider intended its service to be used for infringement. That intent can only be shown in one of two ways. Either the provider actively induced infringement, or the service is one that is tailored to piracy without substantial non-infringing uses.
Dismiss Final Copyright Claim
According to Google, the publishers can’t meet this standard. Therefore, their final copyright infringement claim should be dismissed.
“Plaintiffs do not (and cannot) claim that Google provided a service ‘tailored to’ infringement; the Shopping platform plainly has noninfringing uses. And they do not even use the word ‘induce’ or its variants in the complaint. Nor do they assert that Google intended the Shopping platform to be used for infringement,” Google writes.
“Instead the theory Plaintiffs set forth in their complaint is one of material contribution: that Google can be deemed to have the requisite intent to cause infringement because Google continued to run ads from merchants knowing that those merchants were advertising infringing content. This is precisely the theory that Cox rejected.”
Legal Battle Continues
Whether the court agrees with Google’s arguments has yet to be seen, but the request makes clear how far the impact of the Cox Supreme Court ruling can potentially reach.
That said, even if Google’s motion succeeds, the case is not over. The trademark infringement claim under the Lanham Act survived the previous dismissal order and is not addressed in the current motion. The publishers allege that Google Shopping ads displayed unauthorized images of their trademarked textbook covers, and Judge Rochon found that claim was adequately pleaded.
In a separate filing last week, Google also answered the second amended complaint. Among other things, the company cited fair use and innocent infringement as defenses against the trademark claim.
Google also questions whether the publishers have the right to sue at all. The company argues that the textbooks were created as works-made-for-hire, meaning the universities that employed the authors own the copyrights, not the publishers.
Whether that angle will need to be pursued in detail depends on whether the copyright claim will survive the dismissal request, of course.
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A copy of Google’s motion for partial judgment on the pleadings, filed April 17 at the U.S. District Court for the Southern District of New York, is available here (pdf). Google’s second amended answer, filed April 14, can be found here (pdf).
