Posted by Andy Maxwell
https://torrentfreak.com/google-says-scotus-decision-in-cox-vs-sony-will-impact-publishers-lawsuit-250712/
https://torrentfreak.com/?p=269655
In a lawsuit filed at a New York court in June 2024, publishers including Cengage Learning, Macmillan Learning, Elsevier, and McGraw Hill, bemoaned Google’s ‘systemic and pervasive advertising’ of infringing copies of their copyrighted textbooks.
The complaint alleged that Google Shopping ads placed by third parties used unauthorized images of the publishers’ genuine textbooks to promote sales of pirated copies; a ‘bait-and-switch’ by Google, the publishers said.
Further allegations of infringement concerned Google search results that allegedly returned piracy-heavy results in response to searches for the publishers’ 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’t result in account suspensions either.
Dismissal of Vicarious Liability Claim
In a recent motion to dismiss, Google successfully argued that the publishers’ 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.
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’t be held vicariously liable. The publishers’ contributory copyright infringement claim wasn’t part of Google’s motion to dismiss so that remained outstanding.
Answer to First Amended Complaint
On July 2, Google filed a comprehensive answer to the publishers’ 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.
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.
The system may not be perfect but, according to Google, perfection isn’t 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’s products for nefarious purposes.
“Were it otherwise, countless internet platforms and product manufacturers would essentially be held strictly liable simply for offering their products to users,” Google notes.
“The facts in this case will ultimately demonstrate that Plaintiffs’ claims are meritless.”
Motion for Stay, Pending Supreme Court Decision
In a letter to the court dated July 10, counsel for Google requests a stay in the current case.
“We respectfully request that the Court stay this case pending the U.S. Supreme Court’s decision in Cox Communications, Inc. v. Sony Music Entertainment….which will consider the standards for (i) contributory copyright infringement and (ii) willfulness under 17 U.S.C. § 504(c),” the letter reads.
As reported last month, Cox Communications successfully petitioned the Supreme Court to review a Fourth Circuit ruling that held the ISP contributorily liable for the actions of subscribers who engaged in piracy.
Labels, including Sony and Universal, had previously secured a $1 billion verdict from a jury in Virginia. This verdict was based on Cox’s knowledge of infringement, material contribution, and a $150,000 maximum statutory damages award per work for ‘willful infringement.
Given the clear similarities to the Cox case pending at the Supreme Court, Google notes that a stay in the publishers’ lawsuit is appropriate.
Core Claims of Willful Contributory Copyright Infringement
Google believes that the Supreme Court’s decision will not only have an impact on the publishers’ lawsuit, it could potentially determine the outcome.
“The core of Plaintiffs’ case is their claim that Google is a willful contributory copyright infringer,” the motion for stay continues.
“Given the centrality of the contributory infringement claim and Plaintiffs’ intent to seek enhanced willfulness damages, the Supreme Court’s decision in Cox will have a significant, and potentially dispositive, impact on the course of this litigation.”
Identical Theory of Liability
Google goes on to cite a petition 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.
“Plaintiffs’ theory of Google’s liability is identical to the plaintiffs’ theory in Cox: Plaintiffs say Google is liable for willful contributory copyright infringement because it continued to provide merchants with access to Google’s Shopping platform after receiving notices of infringement,” counsel for Google notes.
“If the Supreme Court ultimately agrees with the United States and rejects the Fourth Circuit’s rule on these issues, that would undermine—likely fatally—Plaintiffs’ theories of contributory liability and willfulness here. But regardless of what happens, the Supreme Court’s eventual decision will shape the key issues presented in this case, including questions related to the scope of relevant fact and expert discovery.”
Google believes that oral argument in the Cox matter “could be heard as early as the November sitting, with a possible decision a few months later.”
Describing a few months delay as a modest postponement that could even offer “significant economies” in the current case, Google says that the plaintiffs will not face “any meaningful prejudice” from a short delay.
Google’s Motion for Stay Pending Supreme Court’s Decision in Cox, is available here (pdf)
From: TF, for the latest news on copyright battles, piracy and more.
https://torrentfreak.com/google-says-scotus-decision-in-cox-vs-sony-will-impact-publishers-lawsuit-250712/
https://torrentfreak.com/?p=269655
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It’s the first Whatcha Reading in July. Here’s how we’re kicking off the month:
