Google Can Assert a DMCA 512(d) Defense–Cengage v. Google (Catch-Up Post)
Textbook publishers are suing Google for its alleged role in facilitating what they consider to be mass piracy. In June 2025, the court partially denied Google’s motion to dismiss. Still remaining in the case are the plaintiffs’ contributory copyright infringement and trademark infringement claims. This case is being heavily litigated, including intensive sparring over seemingly picayune discovery disputes, producing nearly 500 docket entries in less than 2 years. There have been 130 entries so far since December 1, 2025!
In October 2025, the court ruled on the plaintiffs’ efforts to clean out Google’s affirmative defenses. Google flagged the DMCA online safe harbors as an affirmative defense. This produces a rare judicial discussion of Section 512(d), the safe harbor for linking to infringing material.
The court says Google could qualify for 512(d) in this case:
Service Provider.
Google alleges that it “operates the [Shopping] platform” at issue in Plaintiffs’ claims, which “offers hundreds of thousands of merchants the opportunity to advertise their products to Google users,” but that it “does not determine the content of the merchants’ advertisements, sell the merchants’ products, or receive revenue from the merchants’ sales.” This sufficiently alleges that Google is a service provider within the meaning of the DMCA.
Repeat Termination Policy.
Google alleges that it “provides a robust system for intellectual property owners to report allegedly infringing content to Google,” that it requires all merchants to agree to its Terms of Service, which, among other provisions, forbid the merchants to use Google’s services to “violate anyone’s … intellectual property … rights”; and that it “does [ ] remove infringing content” in accordance with its Terms of Service
This also sufficient pleads that Google expeditiously responds to notices.
Standard Technical Measures.
Google also alleges that it “takes the problem of online piracy seriously … [and] has taken substantial steps to assist intellectual property owners in protecting their rights by adopting industry-leading practices to combat infringement across its Shopping platform.”
The court could have said that nothing has been qualified as a standard technical measure, including the steps enumerated or implied by Google.
Information Location Tool.
“Google’s pleadings include that it operates a search engine.”
No Direct Financial Benefit
“Google alleges that it does not “sell the merchants’ products[ ] or receive revenue from the merchants’ sales” on its Shopping platform.”
(This seems like an incomplete argument about Google’s financial benefit from the alleged piracy).
All of this is enough to let Google continue pushing its 512(d) defense to the remaining contributory copyright infringement claim.
* * *
Despite the choppiness of the court’s opinion (which the court partially blames on Google not organizing its explanations in a clear manner), the holding reaches the uncontroversial conclusion that Google search could qualify for the 512(d) safe harbor. What makes this conclusion blog-worthy is how rarely courts have had to say it. It’s conventional wisdom that 512(d) protects Google, but that’s not based on an extensive body of caselaw. Here are some of my 512(d) posts from the past 20+ years:
- “Google Protected by 17 USC 512(d) for Links to Infringing Content; Perfect 10’s Takedown Notices Were Mostly Insufficient” [512(d) applied]
- “Video Embedding Site Isn’t a Contributory Copyright Infringer, But Sideloading Could Be Direct Infringement–Flava Works v. myVidster” [defendant doesn’t need 512(d)]
- “Catching Up on 512 Safe Harbor Cases (and Other Online Copyright Cases) From the Past Year” [512(d) didn’t apply]
- “DMCA 512(c) Safe Harbor Doesn’t Apply to Photo Embedding–Great Bowery v. Best Little Sites” [defendant waived 512(d)]
- “Internet Access Providers Aren’t Bound by DMCA Unmasking Subpoenas–In re Cox” [technical interpretation]
[If I’m forgetting something, I’d be grateful for the reminder].
As you can see, this list contains some pretty scrappy stuff. Not exactly the irrefutable precedential track record you would expect for something as fundamental as the legal foundation for Google search and its annual revenue line of hundreds of billions of dollars. That’s why even a jumbled opinion like this deserves a shoutout on the blog.
Case Citation: Cengage Learning, Inc. v. Google LLC, 2025 WL 3022375 (S.D.N.Y. Oct. 29, 2025). CourtListener page.