IP Law Daily, COPYRIGHT NEWS: Educational publishers sue Google for promoting pirated copies of their textbooks, (Jun 7, 2024)

By Linda O’Brien, J.D., LL.M.

The lawsuit alleges that Google has ignored hundreds of copyright infringement notices and continues to profit from the sale of pirated versions of textbooks advertised on its search engine.

Google has engaged in copyright and trademark infringement by advertising and promoting the sale of unauthorized copies of digital textbooks and related educational materials by pirate websites, according to a complaint filed in the federal district court in New York City, New York. The lawsuit also alleges that Google continues to profit from the sale of the infringing copies despite receiving infringement notices from the publishers, which is causing significant harm to the publishers (Cengage Learning, Inc. v. Google LLC, No. 24-cv-04274 (S.D.N.Y. June 5, 2024)).

Cengage Learning, Inc., Bedford, Freeman & Worth Publishing Group, LLC, MacMillan Holdings, LLC, Elsevier, Inc., and McGraw Hill LLC are publishing companies that develop, market, and sell a range of traditional and digital educational content and tools to professionals, educators, and students. In particular, the companies work with authors who are experts in their fields to create and publish textbooks throughout the U.S. Only licensed distributors are authorized by the publishers to sell their textbooks in digital or ebook formats.

Each publisher has expended significant resources in the creation, advertisement, and promotion of their textbooks. They have invested decades of effort to build their reputations and goodwill for publishing works of the very highest quality, which consumers associate with the publishers and the trademarks under which the works are published. The publishers own the copyrights in their works or derivative works, which are registered with the U.S. Copyright Office and the trademarks which are registered with the USPTO, the complaint alleges.

While Google is primarily thought of as a search engine, it is in fact an advertising business and makes most of its money from advertising. Users conduct more than 3 billion searches on Google every day and Google estimates that its market share for general search services in the U.S. is approximately 90 percent. Google takes an active role in creating shopping ads and targeting the ads to users based on information provided by its merchants. Google also reports to its merchants the queries in response the ads of the merchant’s products, informs merchants which ads and queries resulted in clicks from Google users, and offers conversion tracking which allows merchants to monitor whether users who clicked on an ad ultimately purchased the product, the complaint states.

According to the complaint, there are unauthorized sellers (“pirate sellers”) who sell infringing copies of the publishers’ digital works, including the accompanying test banks and instructor solutions manuals. In its “My Ad Center,” Google evaluates its paid ads by advertiser bid and ad quality and, because Google includes websites of pirate sellers, ads of the publishers and their authorized distributors have been ranked against the pirate sellers. Free ads are similarly ranked by relevance and Google often ranks both paid ads and free ads for infringing works in close proximity or ahead of ads for the publishers’ authentic textbooks. Google’s infringing shopping ads have been extremely effective at diverting would-be purchasers of the publishers’ textbooks to buy the infringing works instead of legitimate copies. Students who initiate searches on Google see search results for the publishers’ legitimate textbooks but also ads for pirated textbooks, which reflect artificially low prices.

The complaint states that, in most or all cases, Google’s infringing shopping ads include unauthorized images of the publishers’ textbook covers. The pirate sellers can sell their infringing works at such low prices because they did not create or license the works. Instead, they just illegally made digital copies of the publishers’ works. Google’s infringing shopping ads link users directly to the landing pages of pirate websites where users can download and purchase the infringing works. Google provides another feature that users to still more infringing shopping ads with an option to click on more ads from the pirate sellers. Although Google assures consumers that sellers have gone through a verification process, it is giving its seal of approval to ads by infringing sellers and has refused to remove or disable those ads included in the publishers’ notices or terminate pirate merchants who infringe repeatedly. Since June 2021, the publishers have sent hundreds of infringement notices to Google identifying thousands of specific pirate sellers, sites, and shopping ads advertising infringing works, which Google has ignored. While the publishers and consumers have been harmed by the infringing shopping ads, Google profits every time a user clicks on an infringing shopping ad.

The lawsuit alleges claims for contributory copyright infringement, vicarious copyright infringement, trademark infringement, and a state law claim for engaging in deceptive and misleading business practices. The publishers also seek an injunction enjoining Google from further infringements and deceptive practices, as well as damages, costs, and attorney fees.

The Case is No. 24-cv-04274.

Judge: Rochon, J.

Attorneys: Matthew Jan Oppenheim (Oppenheim & Zebrak LLP) for Cengage Learning, Inc., Bedford, Freeman & Worth Publishing Group, LLC, MacMillan Holdings, LLC, Elsevier, Inc., and McGraw Hill LLC.

Companies: Cengage Learning, Inc.; Bedford, Freeman & Worth Publishing Group, LLC; MacMillan Holdings, LLC; Elsevier, Inc.; and McGraw Hill LLC Google LLC

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