Author: tio

In June 2024, Cengage Learning, Macmillan Learning, Elsevier, and McGraw Hill sued Google over Shopping ads that promoted pirated copies of their textbooks.

Last month, Google asked the court to throw out the last surviving copyright claim, arguing that the Supreme Court’s recent ruling in Cox Communications v. Sony Music had effectively killed the publishers’ theory of liability.

The publishers clearly disagree. In the opposition brief filed a few days ago, they accept the Supreme Court’s Cox framework and argue that their facts fit the stricter requirements anyway. They also note that an effort by Google to limit advertisements for pirated ebooks had the opposite effect.

Inducement

Under the new Cox standard, contributory copyright infringement applies if one of two conditions is met. This includes inducement, which requires evidence that a defendant actively encouraged copyright infringement. According to the publishers, that is the case here.

The publishers argue the entire Google Shopping platform fits that description. For each of the 7,359 textbooks they identified, Google created an ad promoting an infringing copy, placed it at the top of search results, targeted it at users it predicted would click, and linked it to a pirate site that delivered the book.

Google previously noted that the shopping platform is largely automated and content neutral, which would disfavor inducement. However, the publishers’ brief cites several examples of “specific acts” by Google that “actively encourage” infringement.

‘Ad Ban Only for Legitimate Sellers’

The first act is what the publishers describe as Google’s inverted ebook advertisement policy. Google banned ebook ads from its Shopping platform in 2021, citing piracy concerns. According to the publishers, the ban didn’t have the desired effect.

The publishers say that the ban worked as advertised against legitimate ebook sellers, who were blocked from promoting licensed copies through Google Shopping. Pirate sellers, meanwhile, continued to advertise infringing copies on the same platform.

“Google was well-aware (including because Plaintiffs told Google) that its ‘ban’ was not really a ban, since Google was blocking ads for legitimate ebooks, but running ads for pirated ebooks, thus showing consumers only pirated ebook products,” the opposition brief reads.

The publishers don’t go into detail on how pirate sellers were able to circumvent the ban, but the result is that people were shown ads for pirate books, not legitimate ones.

Running ads for the very products a policy was meant to block, the publishers argue, is evidence of the intent that inducement requires. A company that flouts its own anti-piracy ad policy cannot then claim it had no idea what was happening on its platform.

‘No Neutral Conduit’

Google positioned itself as a neutral conduit that simply displays advertisements that are supplied by third parties. However, the publishers reject this and note that the search engine has a much more active role.

“Google is not a list-serve or modern-day bulletin board like Craigslist, passively allowing users to post listings. Google is a sophisticated ad agency at scale, actively deciding what to advertise, how to advertise it, and to whom to target the advertisement,” they note, in favor of their inducement argument.

As a third category, the publishers stress that Google had the required knowledge of the allegedly infringing activities. They sent Google “hundreds of notices” identifying thousands of specific infringing ads and pirate merchants. These ads allegedly stayed online after the takedown notices were sent.

When the publishers complained to Google, the company allegedly flagged notices as “duplicative”, while threatening to stop reviewing all the publishers’ infringement notices for up to six months.

Tailored to Infringement

While satisfying the inducement prong would be sufficient, the publishers also argue that the second Cox element applies here. They argue that Google’s ads were “tailored to infringement” and not capable of “substantial or commercially significant noninfringing uses.”

Google’s motion applied that standard at the platform level: Google Shopping overall has obvious non-infringing uses, so it cannot be ‘tailored to infringement.’ The publishers, however, counter that the standard applies one level down.

The publishers note that each shopping ad for pirate ebooks was individually tailored. These ads, created by Google, were used to promote pirate books and served no purpose other than to induce copyright infringement.

“Plaintiffs are suing Google for knowingly creating and serving specific advertisements for known pirate sellers that include links to known infringing products, thereby inducing infringement. That Google also advertises non-infringing fishing-poles and garden-hoses does not exempt Google from liability for advertising infringing ebooks,” they write.

Redactions and Reply

Google’s argument that much of its shopping platform is automated should also be rejected, the publishers note. They stress that there are still decision-making humans involved in the process.

The opposition brief includes large portions of redacted text, so there is likely more evidence than what’s shared in public.

Overall, however, the publishers ask the court to deny Google’s motion for partial judgment on the pleadings. This decision will determine whether the final copyright infringement claim survives. Before that decision is issued, Google will get the chance to reply.

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A copy of the publishers’ opposition to Google’s motion for partial judgment on the pleadings, filed at the U.S. District Court for the Southern District of New York, is available here (pdf).

From: TF, for the latest news on copyright battles, piracy and more.