WASHINGTON - Co-authored by Open Markets Legal Director Sandeep Vaheesan and Stephen Doniger of Doniger / Burroughs, the brief argues that the Court of Appeals for the Second Circuit misinterpreted the Copyright Act to immunize Google's persistent and ongoing theft of Genius' content. The Second Circuit also departed from how several other courts of appeals evaluate claims at the intersection of copyright and contract law.

Genius and many other digital firms invest heavily in the collection and distribution of publicly valuable information. Through the faithful application of traditional contract law principles, courts should allow these firms to protect themselves against the “scraping” of their content by digital giants like Google.

“The Second Circuit provides Google with a license to scrape content from countless websites. It not only unfairly denies those websites the right to protect themselves through contract law but also permits Google to extend its search dominance into adjacent markets,” said Open Markets’ Legal Director Sandeep Vaheesan. “Google’s conduct against Genius is no aberration, but rather, as the House Judiciary Committee found in its October 2020 report, an important part of its business model and among its broader panoply of unfair competitive practices.”

The Open Markets Institute thanks Stephen Doniger at Doniger / Burroughs for leading the drafting of the brief and serving as our Supreme Court counsel.

Read full brief below or download here.