FILED ELECTRONICALLY
Bruce P. Keller (BK 9300)
Jeffrey P. Cunard
James J. Pastor:, Jr. (JP 3 176)
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
(212) 909-6000
Attorneys for Plaintiffs
UNITED S
TATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
cv
THE MCGRAW-HILL COMPANIES, INC., :
PEARSON EDUCATION, INC., PENGUIN
GROUP (USA) INC., SIMON & SCHUSTER,
INC., and JOHN WILEY & SONS, INC.
Plaintiffs,
05
Civ. ( ) COMPLAINT
ECF Case
v
GOOGLE
INC., Defendant.
x
Plaintiff publishers The McGraw-Hill Companies, Inc. ("McGraw-Hill"), Pearson
Education, Inc. ("Pearson Education"), Penguin Group (USA) Inc. ("Penguin"), Simon &
Schuster, Inc. ("Simon & Schuster"), and John Wiley & Sons, Inc. ("John Wiley")
(collectively, the "Publishers") for their complaint against defendant Google Inc.
("Google"), allege as follows:.
NATURE OF THE ACTION 1 .
This is an action for declaratory and preliminary and permanent injunctive relief, arising under the U.S. Copyright Act, 17 U.S.C. $5 101 et seq. (hereinafter referred
to as the "Copyright Act").
2 . Publishers bring this action to prevent the continuing, irreparable and
imminent harm that Publishers are suffering, will continue to suffer and expect to suffer
due to Googles willful infringement, to further its own commercial purposes, of the
exclttsive rights of copyright that Publishers enjoy in various books housed in, among
others, the collection of the University Library of the University of Michigan in Ann
Arbor, Michigan ("Michigan").
3 . Using the rubric of a "Google Library Project," Google has announced
that it has begun and will continue a commercial program under which it will digitally
scan, or copy, the entirety of each of the books supplied to it by Michigan, without regard
to whether (a) any or all of those books are protected by copyright and (b) any of the
Publishers (or any other publisher or owner of copyright, for that matter) consents to
having its copyrighted books included in the project.
4 . In consideration for receiving books from Michigan for scanning, Google
proposes to make a digital copy of each book that it scans and then provide that copy to
Michigan for Michigans own use. Google also proposes to (a) store, in perpetuity, one
or more of the resulting digital copies on Googles computer servers, (b) offer to the
public the ability to search, and have access to, the copies of the books stored on
Googles servers and to retrieve excerpts of those books and (c) publicly display the
2.excerpts of the books to any person in the world whose search, through Google, has
retrieved that book. All of these steps are taken by Google for the purpose of increasing
the number of visitors to the google.com website and, in turn, Googles already
substantial advertising revenue.
5 . The Publishers support making books available in digital form so that
those books can be, among other things, researched through electronic means, To that
end, they have separately developed and are continuing to develop various means of
making electronic copies of their own works available consistent with their exclusive
rights under copyright. One such means involves the recently announced Open Content
Alliance ("OCA") involving a cooperative effort among publishers, libraries and Yahoo!
Unlike the Google Library Project, OCA will make books accessible to any search engine
(including Googles). Also, unlike the Google Library Project, entire works will be made
available with the permission of copyright holders in ways that protect their rights.
6 . The Google Library Project, however, completely ignores those rights in
favor of Googles own economic self-interest. Notwithstanding the participation of
Michigan and other academic and non-profit libraries, there should be no mistaking that
Googles involvement in the Google Library Project is a wholly commercial undertaking,
In exchange for the libraries providing Google with books for purposes of digital
scanning, Google "pays" by reproducing and delivering digital copies of those books to
the libraries. When Google makes still other digital copies available to the public for
what it touts as research purposes, it does so in order to increase user traffic to its site,
which then enables it to increase the price it charges its advertisers.
3
-._- ..,.___. . .-...--.
7. Because Googles entirely commercial endeavor requires, among other things, massive, wholesale and systematic copying of entire books still protected by
copyright for public distribution and public display, it infringes one or more of each
Publishers exclusive rights under the Copyright Act, 17 U.S.C. 3 106. Neither (a) the
fair use provisions of 17 U.S.C. 9 107 nor(b) the narrow provisions of 17 U.S.C. 5 108,
which in very different circumstances would allow a library but, in no event, Google, to
make digital copies of these works in a librarys collection, excuse Googles wholesale
unauthorized copying.
8 . Google is aware that each of the Publishers does not want its copyrighted
books to be included in the Google Library Project without Google first having obtained
permission from the Publisher. Google, claiming fair use, has declared that it is not
required to obtain such permission. As a result, Publishers have been forced to
commence this action to protect and prevent ongoing and imminent harm to the
copyrights in their books.
JURISDICTION AND VENUE
9 . This Court has jurisdiction over the subject matter of this action pursuant
to 17 U.S.C. 3501, and 28 U.S.C. $3 1331,1332,1338 and 2201(a).
1 0 . Personal jurisdiction is proper under CPLR 302 because Google regularly
transacts or solicits business in this District; persistently provides services to Internet
users, consumers and advertisers in this District; and derives substantial revenue from
services, including advertising services, rendered in this District.
4.
11. Personal jurisdiction is proper under the U.S. Constitution because Coogles business in the District qualifies as sufficient minimum contacts between
Google and the District such that exercise of personal jurisdiction would not offend due
12. Venue is proper in this District pursuant to 28 U.S.C. $5 1391(b) and
1400(a) because (i) Google conducts business in this District and (ii) Googles actions
have injured Publishers, who conduct substantial business in this District.
FACTS COMMON TO ALL CLAIMS
Plaintiffs
13. McGraw-Hill is a New York corporation with its principal place of
business in New York, New York. Through its Education segment, McGraw-Hill is a
leading publisher of educational materials, information and solutions for the Pre-K
through 12th grade, Assessment & Instruction, Higher Education and Professional
markets. McGraw-Hill is the owner or exclusive licensee of, among others, copyrights in
the works listed at Exhibit A.
14. Pearson Education, formerly named Prentice-Hall, Inc., is a Delaware
corporation that is a subsidiary of Pearson plc and has its principal place of business in
Upper Saddle River, New Jersey. Together with its corporate affiliates, Pearson
Education is one of the leading educational publishers in the world, educating more than
100 million people worldwide. Its college and professional imprints include Prentice-Hall,
Addison-Wesley, Allyn & Bacon, Benjamin Cummings, Longman, Que, Sams and
5 I.New Riders, Pearson Education is the owner or exclusive licensee of, among others,
copyrights in the works listed at Exhibit A. ~
1 5 . Penguin is a Delaware corporation that is the United States affiliate of the
Penguin Group and is a subsidiary of Pearson plc. It has its principal place of business in I
New York, New York. In addition to its Penguin imprint, Penguin publishes under
famous imprints and trademarks, such as Viking, Penguin Classics, Penguin Press, G. P.
Putnam & Sons (founded 1 X36), Dutton, and Riverhead. Penguin is the owner or
exclusive licensee of, among others, copyrights in the works listed at Exhibit A.
1 6 . Simon & Schuster, a subsidiary of Viacom, Inc., is a New York
corporation with its principal place of business in New York, New York. Founded in
1924, Simon & Schusters prominent imprints include Simon & Schuster, Scribner and
Free Press. Simon & Schuster is the owner or exclusive licensee of, among others,
copyrights in the works listed at Exhibit A.
11. Wiley is a New York corporation with its principal place of business in
Hoboken, New Jersey. Founded in 1807, Wiley is a leading publisher for the higher
education, professional, trade, scientific, technical, and medical communities worldwide.
It is, along with its wholly-owned subsidiaries, the owner or exclusive licensee of, among
others, copyrights in the works listed at Exhibit A.
1 8 . Publishers invest a great deal of time and money to acquire rights to and
publish their books, which reflect not only the creative efforts of individual authors, but
also the substantive and creative review, input and organization of editors employed by
Publishers, as well as significant expenditures on the printing, marketing and distribution
6.of those works. Publishers have vigorously sought to protect, defend and enforce their
exclusive rights in and to their copyrighted books, including those listed at Exhibit A.
1 9 . In order to profitably publish their books and continue in business,
Publishers depend on initial and backlist sales of copies of book~s and the licensing
revenue from these works. Particularly with respect to books
that are not intended for the mass market, the sale of every additional copy - in whatever medium - is significant, as
is each source of ancillary revenue, such as licensing fees received for granting
permission to make copies of and prepare and use excerpts of such works in hard copy
and in electronic form.
20.
It has long been the case that, due to the exclusive rights enjoyed by Publishers under the Copyright Act, both for-profit and non-profit entities provide
royalties or other consideration to Publishers in exchange for permission to copy, even in
part, Publishers copyrighted books.
21. Collectively, the Publishers have registered many more copyrights than
those set forth in Exhibit A and, collectively,
many more of Publishers works than those set forth in Exhibit A are among the books Michigan plans to provide to Google for
digital scanning and display as part of the Google Library Project.
Defendant
22.
Google is one of the worlds largest media companies. Although it is best known for operating one of the worlds most popular Internet search engines, it generates
revenues in a very traditional manner: by "delivering relevant, cost-effective. .
advertising." See http://investor.google.com..
23. To attract more users to its site ~ thus allowing it to sell "cost-effective, online advertising" to its customers - Google offers separate search engines for the web,
images, news groups, shopping sites, and many other special interest categories. It also
has begun to offer other content, just like its competitors Yahoo!, MSN, AOL and others.
24.
Googles business model has been very successful. Based in large part on its Internet advertising revenue streams, including its AdWords and AdSense programs,
which generate ads that target the specific keywords searched for by its users, it now
enjoys a market capitalization of approximately $85 billion.
The Goode Library Project
25.
In December 2004, as part of its continuing effort to increase the advertising value of its site, Google announced the Google Library Project, under which
it claims it will make books in several of the worlds leading libraries available for
searching online, including books currently protected by copyright. In order to do so,
Google will first obtain print copies of books from a participating library, such as
Michigan. It will then scan those books, making a digital copy of the print edition. It
will then return to the participating library the original print edition. In addition, Google
will give the library at least one copy of each book in digital form.
26.
Google does not add any new expression or meaning to the books it scans for inclusion in the Google Library Project. When portions of those books are displayed
to users, Google simply includes much (but not all) of the bibliographic information with
which the book is originally published.
8
!
------7.----- --_______,_.. -_-.-,------- ---- ----.
27. Five libraries originally agreed to participate in the Google Library Project: The Harvard University Library ("Harvard"), the Stanford University Libraries
("Stanford"), the Bodleian Library of the University of Oxford ("Oxford"), the New York
Public Library ("NYPL") and Michigan. On information and belief, Oxford and NYPL
will limit their participation to works that are no longer protected by copyright, but are in
the public domain. Harvard and Stanford have been somewhat less clear about which
books they will make available to Google.
28. Google and Michigan, however, have stated clearly that Michigan will
make available to Google, for Googles reproduction and display, the books in
Michigans collection, even if those books still are protected by copyright. Among the
books in that collection in which Publishers hold copyrights are the works set forth in
Exhibit A, each of which has been duly registered with the Copyright Office and each of
which is at imminent risk of being copied in its entirety and made available for search,
retrieval and display, without permission, unless this Court enjoins Googles plan to
make the Michigan "collection[ 1" available online. See http://print.google.com/googleprint/
publisher~library.html.
2 9 . Google purports to justify its systematic copying of entire books on the
ground that it is a necessary step to making them available for searching through
www.google.com, where excerpts from the books retrieved through the search will be
presented to the user. Exhibit B. Google analogizes the Google Library Projects
scanning of entire books to its reproduction of the content of websites for search
~ purposes, This comparison fails. On the Internet, website owners have allowed their
I
9 I.sites to be searchable via a Google (or other) search engine by not adopting one or more
technological measures. That is not true of printed books found in library shelves.
Moreover, books in libraries can be researched in a variety of ways without unauthorized
copying. There is, therefore, no "need," as Google would have it, to scan copyrighted
books.
30. In fact, the position that Google has taken regarding the Google Library
Project ~ that it can include books protected by copyright without permission from the
copyright owner - is inconsistent with another, very similar project, which Google calls
the Google Print Program for Publishers. There, Google has recognized that it needs the
permission of copyright owners if it is to engage in the widespread copying, distribution
and display of copyrighted works that characterizes both programs. As part of the
Google Print Program for Publishers, Google obtained the express permission to engage
in such acts from publishers, including Plaintiffs.
31. There is no principled distinction between the Google Print Program for
Publishers and the Google Library Project, with respect to the types of works that are
copied, the digital technology used to copy and store the books, the amount of a book that
is copied by Google and the public accessibility and display of the copied works. The
only distinction is Googles decision not to seek permission for books included in the
Google Library Project because those books happen to be in the collection of a given
library. Accordingly, although Publishers support and have given Google permission to
include many of their works in the Google Print Program for Publishers, they have.objected to and continue to object to Googles inclusion of their copyrighted works in the
Google Library Project.
32. In response to the objections of Publishers and others, Google has
announced that publishers have until November 2005 to provide Google with a list of
every one of their books still protected by copyright that they do not wish to have Google
copy as part of the Google Library Project. Should a Publisher fail to provide such a
detailed list to Google, with the information that Google has announced is required, all of
that Publishers books found in Michigan will be at imminent risk of unauthorized
copying (if Google has not already made unauthorized copies), distribution and public
display.
33. Both the Google Library Project and Googles pronouncement that
publishers must provide to Google detailed lists of books that they wish to be excluded
are contrary to the black letter requirements of the Copyright Act. The exclusive rights
enjoyed by copyright owners to reproduce, publicly distribute and publicly display their
works, and to authorize others to engage in such acts, 17 U.S.C. 3 106, squarely put the
burden on Google either to obtain the permission from copyright owners to copy and
make use of copyrighted books or exclude them from the Google Library Project. Each
Publisher has already made quite clear to Google that none of its works should be
included in the Google Library Project without permission, the Publishers are under no
obligation to provide Google with any further information and the information Google
professes to need in order to easily exclude copyrighted books in print from the Google
Library Project is readily available to it from a variety of sources including, but not
1 1 !.hmited to, the Copyright Office and Michigans on-line catalog. See http://lib.umich.edu/
mirlyn/mirlynpage.html.
34. Apart from the November 2005 deadline set by Google, Google and
Michigan have been unclear (at best) with respect to when any given book in Michigans
collection has been or will be included in the Google Library Project, as well as when
Google actually has copied or will copy a given book, make it available for search,
retrieval and public display and convey the digital copy to Michigan. There is, however,
no dispute about Googles intent: come November, it plans to continue with the Google
Library Project, which it has described as taking "the collection[ I" of Michigan and
"making its content searchable" at www.google.com. Accordingly, a concrete, justifiable
case or controversy exists with respect to Publishers works in the Michigan collection
because Google intends to engage in the unauthorized reproduction, public distribution
and public display of, inter alia, the works identified in Exhibit A, and of others.
35. Googles continuing and future infringements are likely to usurp
Publishers present and future business relationships and opportunities for the digital
