After years of criticism from rightsholders, punctuated by incremental but significant adjustments to limit the appearance of pirated content in search results, Google is no longer continuously painted as siding with the enemy.
Of course, Google has always argued it never did. The company’s search engine acts as an indexer of content, content placed on the internet by others, Google reminded frustrated rightsholders. In response to properly formatted DMCA notices, links to infringing content were systematically taken down but, in another reminder playing on repeat, Google advised that removing links does nothing to take infringing content offline.
With tens of millions of search results now systematically wiped out before they even appear, anti-piracy groups such as BREIN seem happy with the direction the relationship with Google is heading. Yet, a lawsuit filed in New York last week by Cengage Learning, Macmillan Learning, Macmillan Holdings, LLC; Elsevier Inc., Elsevier B.V., and McGraw Hill LLC, paints an entirely different picture for the publishing industry.
Pirate Site Promoter, Piracy Profiteer
The opening salvo in the publishers’ lawsuit, which majors on violations of the Copyright Act, the Lanham Act, and New York’s General Business Law, details Google’s ‘systemic and pervasive advertising’ of infringing copies of their textbooks and other educational works.
“For years, Google has knowingly facilitated and reaped profits from the sale of infringing works through pirate websites that Google promotes. The Publishers have reported infringement after infringement to Google, only to have those reports ignored,” the complaint begins.
For background, the publishers claim that Google’s position as the dominant provider of digital advertising services earned the company $300 billion in revenue last year. They claim that the company’s advertising power is used to undermine publishers for the purpose of generating profit.
Search and Shopping
Turning to Google Search, the publishers note that in addition to providing organic search results, results also contain advertisements. These include ads that are part of Google’s Shopping platform containing both text and images, with the latter providing users with a “strong sense” of advertisers’ products, as per Google marketing.
After clicking the ‘Shopping’ tab on the main search page, users are presented with more Shopping Ads, including sponsored ads where merchants pay Google based on the volume of clicks.
“Of course, Google’s Shopping Ads for Infringing Works (‘Infringing Shopping Ads’) do not use photos of the pirates’ products; rather, they use unauthorized photos of the Publishers’ own textbooks, many of which display the Marks. Thus, with Infringing Shopping Ads, this ‘strong sense of the product’ that Google is giving is a bait-and-switch,” the complaint alleges.
“The Pirate Sellers rely on Google Shopping Ads to advertise their Infringing Works and gain sales, and Google systematically and repeatedly creates Infringing Shopping Ads to ‘send’ consumers to Pirate Sellers’ websites (‘Pirate Sites’) to buy their infringing products.”
No Indiscriminate Advertising
At this point the publishers’ strategy begins to take shape. Drawing a reverse analogy to the Yellow Pages, where ads were allegedly printed as supplied and then disseminated “indiscriminately” to the public, Google’s role here is described as active. The company creates the ads and targets merchants’ products to the very users looking for those products, at a time it determines, the publishers claim.
The significant allegation from the publishers in this respect is that Google ranks ‘Paid Ads’ by “advertiser bid and ad quality” which puts the publishers and their distributors up against the ‘Pirate Sellers.’ Also in the mix is Google’s assessment of “ad quality” which considers the relevance of the ad to the user’s search and Google’s evaluation of the website the ad points to, i.e a pirate site.
“Google often ranks both Paid Ads and Free Ads for Infringing Works in close proximity to, or even ahead of, ads for the Publishers’ authentic textbooks,” the complaint alleges, adding the following:
Google’s Infringing Shopping Ads are extremely effective at diverting would-be purchasers of the Publishers’ textbooks to buy Infringing Works instead of legitimate copies. When students seeking to purchase textbooks initiate searches for the Publishers’ textbooks on google.com, they see not just organic search results and ads for the Publishers’ legitimate textbooks, but also ads for pirated textbooks.
Indeed, Infringing Shopping Ads make up a substantial portion of the Shopping Ads these users see, often outnumbering ads for authentic textbooks and often with preferable placement. Worse, Google’s advertisements reflect the Infringing Works’ artificially low prices. And the ads, which reproduce the Publishers’ own images of the textbooks without authorization, are often indistinguishable from legitimate ads.
The publishers say that in most or all cases, Google’s ‘Infringing Shopping Ads’ include textbook cover images, which neither Google nor the Pirate Sellers have permission to use in connection with the promotion or sale of infringing books.
Publishers Claim Google Should Know Products Are Illegal
With names including “Cheapbok,” “Athena Line Store,” “Biz Ninjas,” “Nardab,” “Livyluxe,” and “Shop Hoth,” the publishers say that Google should’ve known who they were dealing with; even more so since the publishers included those names in their takedown notices.
The publishers note that other red flags include extremely low pricing. This is due to the Pirate Sellers offering books in PDF format when “legitimate distributors rarely, if ever, sell their textbooks in PDF form.” That Google allegedly helps users to refine their searches by adding ‘pdf’ via a dedicated button, only makes matters worse, they add.
The complaint then turns to Google’s claim that it verifies sellers’ identities. Google also verifies sellers’ authorized ownership of their sales websites and verifies their suitability to use Google ad services. The publishers’ turn these claims to their own advantage.
They claim that verification means Google has the ability to communicate with sellers via email or verified phone numbers
In cases where Google was advised that a seller was offering pirated content and Google users were still able to place orders after clicking an ad, “Google had the ability to stop the direct infringement entirely.”
In the majority of cases where pirate sellers predominantly or exclusively use Google Ads to reach their customer base, terminating their accounts would’ve had a significant impact on future sales.
“Google’s removal of Infringing Shopping Ads and termination of repeat infringers’ advertising privileges also would have a significant impact by eliminating or greatly curtailing the reproduction of Infringing Works by Google’s users when they make purchases on Pirate Sites promoted by Google,” the complaint adds.
Lacking Response to Infringement Notices, Lawsuit Ensues
The publishers claim that they began sending infringement notices to Google in June 2021, identifying pirate sellers, pirate sites, and Shopping ads advertising pirated works, but to no avail.
“Indeed, despite receiving notice after notice, Google has continued to advertise specific Infringing Works sold by specific Pirate Sellers identified in the Publishers’ notices. Google has also continued to advertise Infringing Works for Pirate Sellers who have been the subject of repeated notices. Google did not terminate these repeat infringers’ Merchant Center accounts within a reasonable time, if at all.”
The complaint also cites an aggravating factor; when the publishers sent follow-up notices for matters previously reported but not handled to their satisfaction, “Google threatened on multiple occasions to stop reviewing all the Publishers’ notices for up to six months,” the complaint alleges.
Google’s response was due to duplicate requests; the company warned that if that happened three or more times on the same request, it would “consider that particular request to be manifestly unfounded” which could lead the company to “temporarily stop reviewing your requests for a period of up to 180 days.”
The publishers claim that Google is contributorily liable for at least two forms of direct infringement, vicarious infringement, and trademark infringement for allowing the plaintiffs marks to be used in commerce in connection with infringing works. They also allege violations of New York General Business Law section 349(a) for engaging in materially deceptive and misleading practices.
The publishers’ complaint can be found here (pdf)