Photo Credit: Ian Hutchinson
Google requests a stay in a case against Cengage, Macmillan, and other textbook publishers pending the Supreme Court’s decision in Cox v. Sony.
In a lawsuit filed against Google by several textbook publishers in 2024 accuses the tech giant of not doing enough to prevent piracy, and, in fact, profiting from it. Google saw a win when the publishers’ vicarious liability claim was dismissed, but a claim for contributory infringement is yet to be decided. Now, Google is requesting a stay in that litigation, pending the Supreme Court’s decision in the landmark Cox v. Sony case, which could have a “potentially dispositive” impact on Google’s case.
Publishers including Cengage Learning, Macmillan Learning, Elsevier, and McGraw Hill, accused Google of profiting from the piracy of their copyrighted materials through “systemic and pervasive advertising” of infringing copies of those textbooks. According to the complaint, Google Shopping ads placed by third parties used unauthorized images of the publishers’ textbooks to promote sales of pirated copies—a “bait-and-switch,” according to the publishers.
But in a recent motion to dismiss, Google successfully argued that the publishers’ claim of vicarious liability lacks two key elements: the right and ability to supervise the infringing conduct, as well as a direct financial interest in doing so. Given the infringement took place on third party sites, the court found that Google lacked the ability to supervise or control the sales and therefore could not be held vicariously liable.
The publishers’ claim of contributory copyright infringement remains outstanding, as it was not part of Google’s motion to dismiss. On July 10, attorneys for Google requested a stay in the current case in a letter to the court.
“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,” they write, asserting that the aforementioned case will “consider the standards for […] contributory copyright infringement and […] willfulness under 17 U.S.C. § 504(c),” which is related to their own ongoing dispute.
Last month, Cox Communications successfully petitioned the Supreme Court to review a Fourth Circuit ruling that held the internet service provider liable for the actions of subscribers who committed piracy. Previously, labels including Sony and Universal, had secured a $1 billion verdict from a jury in Virginia, based on Cox’s prior knowledge of the infringement and their financial gain from not taking action on infringing users’ accounts.
Google believes that not only will the Supreme Court’s decision in the Cox case have an impact on its own lawsuit with the textbook publishers, but that it could potentially determine the outcome.
“The core of Plaintiffs’ case is their claim that Google is a willful contributory copyright infringer,” the motion to stay explains. “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.”
