Google Amends SerpApi Suit With Content Licensing Terms via @sejournal, @MattGSouthern

Google amended its complaint against SerpApi on August 10, three weeks after a federal judge threw out both of its DMCA claims over the scraping of Google Search results.

The new complaint adds terms from Google’s content licensing deals, the material Chief U.S. District Judge Yvonne Gonzalez Rogers found missing from the original complaint. Google had 21 days to amend and filed on the deadline.

What Google Added

The amended complaint spells out what Google’s licensing contracts require of it. One deal with a licensing partner, in versions dating to 2017, requires Google to make commercially reasonable efforts to protect licensed content from outside access. Another provider requires that its licensed material not be downloadable by third parties.

Google says its deal with Reddit tells it not to let third parties pull out and sell the licensed content on their own, and that Reddit asked for technical measures after suspecting scrapers were reselling that content. Google also points to its Privacy Policy, which tells users it will guard the photos and reviews they upload.

Google says it has what the court asked for, with a hedge attached. To the extent it needs permission from copyright holders to run a measure like SearchGuard, the filing says, it had and has that permission. The qualifier maintains Google’s stance that a company deploying access control does not need such permission, but the court rejected this argument in July.

What The July Order Held

Gonzalez Rogers divided the July 20 dismissal into two parts. She explained that claims based on cases where SearchGuard protected results with no copyrighted content were dismissed without allowing an amendment, because the DMCA doesn’t cover works that aren’t copyrighted. As a result, Google isn’t able to replead those claims.

Claims based on results containing copyrighted material were dismissed with leave to amend. Section 1201(a)(3)(B) requires, in part, that an access control work “with the authority of the copyright owner.” Google had pleaded that it licenses images for its Knowledge Panels, but since no terms from those licenses were provided, the court could not conclude that Google was authorized to deploy SearchGuard.

The court also rejected several of SerpApi’s other arguments. It found that the DMCA reaches any person injured by a violation, not only copyright owners, so Google is not the wrong party to bring the case. It held that SearchGuard does not have to be aimed narrowly at copyrighted material, and that Google’s circumvention allegations were not a separate reason to dismiss.

What Is Still Open

The amended complaint narrows how it describes SearchGuard, tying the measure to copyrighted works licensed to appear in Search results. The number of violations isn’t being narrowed down in the same way. Google still claims there are billions of circumventions, even though they don’t explicitly limit that to only result pages with licensed content. The order does not allow claims that rest on results with no copyrighted content.

Meredith Rose, a DMCA specialist at Public Knowledge, told Ars Technica after the July order that the position carries risk for Google, because making it means saying out loud how much copyrighted material its Knowledge Panels hold. Google has “talked themselves into a little bit of a corner,” she said.

Why This Matters

Whether Google can bring these claims back to life might depend on whether its licensing contracts reveal that copyright owners gave SearchGuard the green light to defend their works. That authorization is a second question on top of circumvention, and it pulls Google’s content deals into a case about scraping.

Rank trackers, SERP monitors and AI visibility tools that pull from Google Search sit closest to the question the case is testing.

Looking Ahead

SerpApi counsel said Tuesday that the company remains confident in its position and plans to respond, which is the next filing in the case. The July order bars it from raising arguments in a second motion to dismiss that it could have raised the first time, which limits how much new ground it can open. Discovery stays frozen until the court rules on any such motion.

Meanwhile, Reddit’s DMCA case against SerpApi is progressing. On July 31, Judge Paul Engelmayer let Reddit’s main DMCA claims proceed in the Southern District of New York, reported by MediaPost.

Featured Image: Ground Picture/Shutterstock