Google Asks Court to Gut “Kitchen Sink” Lawsuit Claiming it Profits From Piracy

In a lawsuit filed at a New York federal court in June, leading textbook publishers including Cengage Learning, Macmillan Learning, Elsevier and McGraw Hill, accused Google of profiting from sales of infringing copies of their textbooks.

According to the complaint, Google’s “systemic and pervasive advertising” drives potential buyers to the websites of ‘Pirate Sellers’ who utilize Google Shopping Ads to advertise infringing copies of the plaintiffs’ books. Since the rogue sellers used names including “Cheapbok,” “Biz Ninjas,” and “Shop Hoth,” all of which appeared in the publishers’ takedown notices, Google should’ve known it was dealing with pirates, the publishers claimed.

“Failed to Terminate Repeat Infringers”

Despite this alleged knowledge, and regardless of their takedown notices, the publishers said that it was still possible for users to place orders with pirate sellers after clicking Google ads.

The publishers say this could’ve been curtailed if Google had consistently terminated so-called ‘repeat infringers’ and responded to follow-up notices more positively; the plaintiffs claim that Google responded to repeat requests on the same complaint by warning that it could stop reviewing their requests for up to six months.

The publishers’ complaint alleged (Count I) contributory copyright infringement, (Count II) vicarious copyright infringement, (Count III) trademark infringement, and (Count IV) violations of New York General Business Law, which deals with ‘materially deceptive and misleading practices.’

“Kitchen-Sink Pleading Strategy”

Filed this week in the Southern District of New York, Google’s motion to dismiss begins at what it describes as the “heart” of the case.

The publishers’ claim, that Google contributorily infringed copyrights by not doing enough to prevent ads for infringing works appearing in Google Shopping search results, doesn’t appear to be keeping Google up at night.

“Google will prevail on the merits of that claim because, among other things, Google has adopted industry-leading measures to combat advertisements for infringing products on its platform, well beyond the requirements of the safe harbors provided by the Digital Millennium Copyright Act (‘DMCA’). But this motion is not about Plaintiffs’ contributory copyright infringement claim (Count I),” Google’s motion reads.

The motion actually concerns the three remaining claims in the lawsuit, all of which are based on the same alleged underlying conduct at the “heart” of the case. Google says these were “tacked on” as part of a “kitchen-sink pleading strategy.”

Google: Each Claim Fails as a Matter of Law

Count II: Vicarious copyright infringement

To plead vicarious infringement, a plaintiff must show that a defendant had both the “right and ability” to supervise or control alleged third-party infringement, coupled with an “obvious and direct financial interest” in exploiting those copyrighted works. Google believes these standards haven’t been met.

“[The plaintiffs] have not adequately alleged (1) that Google has the ability to supervise or control the alleged underlying third-party infringement, which occurs entirely on websites not controlled by Google, or (2) that Google benefits financially from this purported infringement, let alone directly so,” Google states.

“Plaintiffs do not (and cannot) contend that either alleged act of Direct Infringement — the sale of unauthorized copies of Plaintiffs’ works, or the reproduction of those copies by purchasers — occurs on the Google platform. The Complaint makes clear that these allegedly infringing acts occurred on third-party websites.”

Responding to the claim that Google obtains a financial benefit from the alleged infringement, Google notes that the plaintiffs’ claim, that Google “earned revenue from each of the clicks that led to the Direct Infringements, and from clicks on paid infringing Shopping ads generally,” falls short of the standard required to establish vicarious liability.

“[To] establish vicarious liability, the financial benefit to the defendant must ‘flow directly from the third party’s acts of infringement,’ either because the defendant profits directly from infringing activity or because the infringement draws customers to the defendant’s service,” Google notes.

“The fact that Google makes money from sellers’ ads does not mean that Google makes money from sellers’ infringement, even if those ads include some products that are infringing, because Google’s financial interest is the same regardless of whether infringement occurs.”

Three Claims Should Fail Now, The Other Will Fail Later

Count III and Count IV, which concern matters not directly related to copyright law, also draw criticism from Google. That leads to the company’s request for the court to dismiss three claims at this stage, with Count I (contributory infringement) the only claims left standing. Not that Google believes the claim will succeed, however.

“None of Plaintiffs’ four claims is meritorious,” counsel for Google notes in a joint letter to the court.

“With respect to Plaintiffs’ claim for contributory copyright infringement, the evidence will show that Google has promptly and appropriately responded to notices of infringement and has enforced its repeat infringer policy such that it is entitled to the protections of the Digital Millennium Copyright Act’s safe harbors as a matter of law.

“With respect to Plaintiffs’ three ancillary causes of action, Plaintiffs’ allegations fail to state cognizable legal claims, and Google is seeking their dismissal. Plaintiffs’ baseless claims should all be rejected and judgment should be entered in Google’s favor.”

The letter reveals that the parties have not yet engaged in settlement discussions.

Google’s motion to dismiss and the parties’ joint letter are available here and here (pdf)

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