Google Books Defeats Copyright Lawsuit Using 512(c)–Avdeef v. Google

The wheels of justice move slowly. To wit, the main Authors Guild vs. Google Books litigation has been percolating in the courts for almost a decade (September 20 is the 10 year anniversary–how do you plan to celebrate?!). Despite the Second Circuit’s refusal of class certification, the case has produced some key defense wins along the way, including Google’s 2013 fair use ruling and the HathiTrust ruling.

In parallel, we have seen occasional minor side challenges to Google Books, such as this suit by Stephen Matthew Avdeef. (The following facts are distilled from the court’s statement of “summary judgment evidence”). Avdeef self-published a novel, “The Last Breath of Mars,” through LuLu Press. In 2006, LuLu uploaded the novel to Google Books. Per LuLu’s license agreement with Google, Google initially allowed visitors to preview 10% of the novel, which it later increased to 20%. Avdeef first objected to the preview’s operation in 2007 but nothing happened. Avdeef complained to Google again in 2012. Google then responded by turning off the preview altogether. Google generated $0.27 in advertising revenue from displaying ads on the novel’s preview page.

The court grants summary judgment to Google on two separate grounds. First, the court says that Avdeef contractually licensed LuLu to license the book, including the previews, to Google Books. Second, the court says that Google qualifies for the 512(c) safe harbor, where LuLu is the “user” and the license agreement constitutes LuLu’s direction to store Avdeef’s material online. Here’s the court’s entire 512(c) analysis:

The summary judgment evidence establishes: Plaintiff’s lawsuit arises out of the storage of copyrighted material on a system or network controlled or operated by Google. The information was stored at the direction of Lulu, acting on behalf of plaintiff and with his authorization. Google designated an agent to receive notifications of infringement. Google did not know of any infringement until plaintiff sent his letter of September 12, 2012. (In fact, Google had no reason to know of such infringement, as it was not aware of facts or circumstances from which infringing activity was or would have been apparent.) Google acted expeditiously to disable access to plaintiff’s novel. Google did not receive a financial benefit directly attributable to any infringing activity.

I presume a fair use argument would have been apropos as well, but the court didn’t discuss it.

This is an interesting 512(c) ruling for at least reasons:

* I can’t recall another 512(c) case where a corporation was the “user” who directed the defendant to store the material. The paradigmatic 512(c) case has been consumer-to-business, not business-to-business.
* Perhaps restating the first point, I can’t recall another 512(c) case where something other than the defendant’s standard TOS governed the storage directions. In this case, the B2B license agreement provided the directions.
* I can’t recall another 512(c) case where the “user” uploaded content licensed from the copyright owner as opposed to user-generated content/remixes or third party content republished without any apparent authorization.

I think none of these attributes should have disqualified Google from a 512(c) defense, but I would have loved to see the court discuss these unusual attributes expressly.

Without that kind of detailed analysis, I’m unclear how 512(c) could apply to the rest of the Google Book litigation. Following this court’s reasoning, 512(c) could be relevant any time Google Books gets a license from libraries or publishers to upload third parties’ materials. Yet, I wonder if 512(c) would apply in situations where Google does the digitization work. That would make an interesting, if narrow, paper topic.

Case citation: Avdeef v. Google, Inc., 2015 WL 5076877 (N.D. Tex. August 26, 2015). The complaint.