Authors Guild, Inc. v. Hathitrust

Filing 220

DEFERRED APPENDIX, volume 1 of 5, on behalf of Appellant Australian Society Of Authors Limited, Australian Society Of Authors Limited, Authors Guild, Inc., Authors League Fund, Inc., Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, James Shapiro, Daniele Simpson, Danielle Simpson, T.J. Stiles, Sveriges Forfattarforbund, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon and Writers' Union of Canada, FILED. Service date 06/28/2013 by CM/ECF.[978638] [12-4547]

A-81

GENERAL ALLEGATIONS
The Library Exemption Under the Copyright Act
40.

Recogn izing the tremen dous societa l value provide d by our nation'
s libraries and

archives in preserv ing and securing works of art, literature and science
, Congre ss included in the
1976 Copyri ght Act a special exempt ion to allow those institutions
to engage in the limited
reprodu ction and distribution of in-copy right works that would otherw
ise violate the exclusi ve
rights of the copyrig ht holders , fair use notwith standin g. Section 108
of the Copyri ght Act
embod ies the compro mise adopte d by Congre ss followi ng decade s
of heated debate betwee n
authors, publish ers and copyrig ht holders , on the one hand, and librarie
s, on the other.
41.

Section 108 specifies the limited circum stances under which librarie
s are

permitt ed to reprod uce and distribu te copyrig hted works for purpos
es of preserv ation,
replace ment copies and the fulfillm ent of patron request s. For exampl
e, under Section 108(b), a
library is permit ted to make three copies of any unpublished work
in its collect ion for
preserv ation and securit y purpos es. With respect to publish ed works,
Section I 08(c) also
permit s a library make three copies. The copies of publish ed works,
howev er, may only be made
to replace a work in the library 's collect ion that is (or was) damag
ed, deterio rating, lost or stolen,
and only if the library is Wlable to obtain a new copy at a fair price.
42.

Under the origina l version of Section 108 passed in 1976, librarie
s were not

permit ted to make copies of works in "machi ne-read able," or digital,
format . In 1998, Congre ss
passed the Digital Millen nium Copyri ght Act ("DMC A"). Among
other things, the DMCA
amend ed Section 108 to permit librarie s to make digital copies of
Wlpub lished works for
preserv ation purpos es and as replace ments for publish ed works.
The statute , howev er, placed
two restrict ions on the permis sible use of digital copies:
(a) There can be no further distrib ution of the digital format ; and

16

A-82

(b) The digital copy cannot be used "outside the premises of the library
or
archives. "
43.

In passing the DMCA, Congress explained the reasons for restricting the
libraries'

use of digital copies:
In recognition of the risk that uncontrolled public access to the copies
or
phonorecords in digital formats could substantially harm the interests
of the
copyright owner by facilitating immediate, flawles s and widespread reprod
uction
and distribution ofadditional copies or phonorecords ofthe work, the
amendment
provides that any copy of a work that the library or archive makes in a
digital
format must not be otherwise distributed in that format and must not be
made
available in that format to the public outside the premises of the library
or
archives. In this way, the amendment permits the utilization of digital
technologies solely for the purposes of this subsection.

***
In the view of the Committee, this proviso is necessary to ensure that
the
amendment strikes the appropriate balance, permit ting the use ofdigital
technology by libraries and archives while guardi ng against the potenti
al harm to
the copyright owner 's market from patron s obtaining unlimited access
to digital
copies from any location.

S. Rep. Nos. 105-190, at 61-62 (1998) (emphasis added).
44.

Congress also addressed the libraries' desire to make "orphan works"
more

broadly available to the public. In 1998, Congress added Section 108(h)
to the Copyright Act in
response to libraries' concerns that the twenty-year extension granted
to copyrights through
passage of the Copyright Term Extension Act would deprive the public
of the availability of
older, out-of-print works that otherwise would have been placed in the
public domain. Section
108(h) permits libraries to reproduce, distribute and perform published
copyrighted works that
are in the last 20 years of their copyright term and are not commercially
exploited or otherwise
reasonably available during the extended term.

17

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45.

Notwithstanding the more expansive reproduction and distribution rights
granted

to libraries, in Section 108(g), Congress made clear that those rights "extend
only to the isolate d
and unrelated reproduction or distribution of a single copy or phonorecord

of the same materia l

on separate occasions[.]" Libraries are expressly prohibited from "engag
ing in the related or
concerted reproduction or distribution of multiple copies or phonorecords
of the same materi al"
or "the systematic reproduction or distribution of single or multiple copies
or phonorecords ... "
17 U.S.c. § I08(g)(1) and (2).
46.

Since the 1998 updates, significant efforts have been made to further
amend

Section 108 to address the preservation practices of libraries in an increas
ingly digital
environment. For example, in 2005, the Library of Congress, in cooper
ation with the U.S.
Copyright Office, sponso red a "Sectio n 108 Study Group" to prepare
findings and make
suggestions to the Library of Congress for modifications to Section
108 to reflect new
technology. On March 31, 2008, the Group released its final report,
which recommended,
among other things, that Section 108 be amended to expand a library
's right to create and store
digital copies of publish ed works in their collections for preserv ation
purposes.
47.

Despite receiving numerous recommendations from the Section 108
Study Group

and other interested parties, since 1998, Congress has not amend ed
Section 108.

The Universities Engage in Systematic Digitization of Copyright Works
48.

In blatant deroga tion of Plaintiffs' exclusive rights under Section 106
and the

expres s regulations govern ing librarie s' rights under Section 108 of
the Copyright Act,
Defend ants have engage d in a concerted, systematic and widesp read
campa ign to digitize,
reproduce, distribute and otherw ise exploit millions of copyri ghted
works in their libraries
withou t pennis sion from the copyri ght holders associated with those
works.

18

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49.

On December 14,2004, Google announced that it was working with four
U.S.

libraries, including MLibrary, to digitally scan books from their collecti
ons. Upon information
and belief, partnerships between Google and other universities and institut

ions followed over the

next several years, including partnerships with UC on or about August
9,2006 , UW on or about
October 12,200 6, IU (through its membership in CIC) on or about June
6, 2007 and Cornell on
or about August 7,2007 . Since commencing the digitization project, Google
and its partners
have digitized more than 12 million books.
50.

Upon information and belief, pursuant to separate Cooperative Agreem
ents

entered into by Google and each University, the parties cooperate to identify
books from the
University's collection to be digitized. The books selected for digitiza
tion are not limited to
works in the public domain, unpublished works or deteriorating publish
ed works that cannot be
replaced, but include in-print books that are commercially available and
are protected by
copyright. The University then collects the works and has them deliver
ed to a facility located
either on or off the school 's campus that is occupied by Google person
nel and scanning
equipment.
51 .

Upon information and belief, Goo gle is responsible for digitizing the
content of

the works. After a work has been digitized, Google retains at least one
copy for commercial
exploitation through "Goog le Books ," an online system that allows users
to search the content
and view "snipp ets" of millions of digitized books.
52.

Upon information and belief, Google also provides a digital copy of
the work to

the University. The digital copy comprises a set of scanned image files,
files containing the text
of the work extracted through optical character recognition ("OCR")
technology, and data
associated with the work indicating bibliographic and other information.
By creating both
scanne d image files of the pages and a text file from the printed work,
the digitization process,
19

A-85

and each subsequent copy thereof, includes two reproductions of the
original. After digitization,
the original works are returned to the source library.
53.

In light of the high-priced and sophisticated scanning technology and
amoun t of

staff required to digitize the works, the digital copies obtained by the
Universities carry
significant economic value. Prior to Google 's involvement, libraries
estimated their costs of
digitization at approximately $100 per volume. Thus, the value of the
digitization project is
measured in the hundreds of millions of dollars.
54.

Upon information and belief, certain Universities, including MLibra
ry, also

digitize works in their collections, including copyrighted works, "in-hou
se," meaning they create
digital copies of works using their own equipment and personnel and
without Google 's
assistance.
55.

Neither Google nor the Universities obtaine d permission from the vast
majori ty of

copyrig ht holders to digitize their books.

GoogJe Books Lawsuit
56.

On Septem ber 20,200 5, the Guild and several published authors filed
a class

action lawsuit against Google in the United States Distric t Court for
the Southern District of New
York (the "Goog le Books Lawsu it"), alleging that Google 's digitiza
tion and commercial
exploit ation of copyrighted works constituted massive copyri ght infring
ement. See The Author s

Guild, Inc., et al. v. Google Inc., Case No. 05 Civ. 8136 (S.D.N.Y.).
57.

On Octobe r 28,200 8, after extend ed negotia tions, the parties filed
a propos ed

settlem ent agreem ent to resolve the dispute. On Novem ber 13,200
9, the parties filed for final
court approv al an Amend ed Settlem ent Agreem ent (the "ASA" ), pursua
nt to which, inter alia,
Google agreed to compe nsate authors and publish ers in exchan ge for
the right to make the
digitiz ed books availab le to the public. If approved, the ASA would
have established a "Book
20

A-86

Rights Registry" to maintain a database of copyright holders and admini
ster distributions of
revenues. The ASA also would have created an "Unclaimed Works Fiducia
ry" to represent the
interests of unclaimed, or "orphan," works, and offered a framework to
make orphan works
available to the public.
58.

On March 22, 2011, the ASA was rejected, with now Circuit Judge Denny
Chin

concluding that "[wJhile the digitization of books and the creation of a
universal digital library
would benefit many, the ASA would simply go too far." Authors Guild
v. Google, Inc., 770 F.

Supp. 2d 666, 669 (S.D.N. Y. 2011).
59.

One of Judge Chin's chief rationales for rejecting the ASA was his concern
that

"the establishment of a mechanism exploiting unclaimed books is a matter
more suited for
Congress than this Court." The Court reasoned:
The questions ofwho should be entrusted with guardianship over orphan
books,
under what terms, and with what safeguards are matters more approp
riately
decided by Congress than through an agreement among private, self-int
erested
parties. Indeed, the Supreme Court has held that "it is generally for
Congress, not
the courts, to decide how best to pursue the Copyright Clause 's objecti
ves."

Id at 677.
60.

The Court noted "longstanding efforts" by Congress to pass legislation
to address

the orphan works problem, including "Orpha n Books" bills that were
proposed in 2006 and 2008
but were never enacted. Id at 678. The Court also concluded that the
ASA raised significant
international law concerns.
61.

The Google Books Lawsuit is still pending in this Court.

HathiTrust
62.

On October 13,200 8, the thirteen universities comprising the crc, led
by

MLibrary, the UC library system, led by the CDL, and the University
of Virginia announced the
launch of HathiTrust to construct a shared repository of their combin
ed digitized collections.
21

A-87

HathiTrust soon expanded to include over fifty universities, consortia
and research institutions
from around the world. According to its website, HathiT rust's mission
is "to contribute to the
common good by collecting, organizing, preserving, communicating,
and sharing the record of
human knowledge."
63.

Upon information and belief, members of HathiTrust "contri bute" to
the

HathiTrust Digital Library digital copies of works in their libraries that
were scanned by Google,
other organizations such as the Internet Archive, or the libraries' own
staff. In derogation of the
restrictions of Section 108 on the numbe r of digital copies libraries are
permitted to make,
HathiTrust members copy, rather than transfer, their digital works to
HathiTrust, meaning that at
least two further reproductions are made (one image file, one digitaltext OCR file) when a
digital object is delivered to HathiTrust. Upon information and belief,
digital objects are
generally copied to HaithiT rust by uploading the files over the Interne
t or delivering them on
remova ble media.
64.

Upon inform ation and belief, the "ingest ion" of digital works and their
associated

metada ta into the HDL is perform ed at MLibrary. As explain ed below,
the digital objects are
then replicated to HathiT rust's active mirror site located on IU's Indiana
polis campus, and stored
on backup tapes located at differe nt UM facilities.
65.

Upon inform ation and belief, HathiT rust thereaf ter provid es three primar
y

services to its constituent membe rs, their patrons and the general public.

66.

First, HathiT rust provid es a clustered storage system to hold more than
435

terabyt es of combin ed digital files deposi ted to date by HathiT rust's
50+ members. Upon
inform ation and belief, HathiT rust's storage architecture employ s two
synchr onized instances of
server farms (each includi ng at least two web servers, a databa se server
and a storage cluster),
with the primar y site located at UM's Ann Arbor, Michig an campu
s where ingestion occurs, and
22

/

A-88

a redundant mirror site located at IU's Indianapolis campus. HathiTrust
also routinely creates
tape backups of all data contained in the HDL. The tapes are stored at
a different facility on
UM's campu s and, upon information and belief, these tapes are replica
ted and the copies are
stored at yet another facility on UM' s campus. Thus, once a University
distributes a digital
object to the HDL, at least eight digital copies of the work (four image
files, four digital-text
OCR files) are generated.

67.

Second, according to HathiT rust's website, "HathiTrust provides secure,
reliable,

long-term preservation for deposited materials." Upon information
and belief, HathiTrust
preserves and secures not only unpublished or difficult-to-replace publish
ed works as permitted
by Sections 108(b) and ( c) of the Copyri ght Act, but also works that
are in-copyright, published
and commercially-available.

68.

Third, HathiTrust provid es a variety of tools to allow its users to access
content

in

the HDL. For examp le, all users may search and identify bibliographic
information (title, author,
subject, ISBN, publish er, and year of publication) for the works contain
ed in the HDL.
HathiT rust also permit s all users to search the entire text of all works
in the HDL (including
public domain and in-copyright works) to determine the nwnbe r oftime
s and page location(s) of
any keywo rd or phrase found in a book.
69.

In addition, HathiT rust permit s users to view, search, print and downlo
ad full

copies of certain volume s in the HDL. Wheth er a user may access
this "full view" of a digital
object is determ ined by the identity of the user seekin g access to the
work (e.g., whether the user
is from a HathiT rust univers ity), and the work's purpor ted copyrig
ht status according to the
"Hathi Trust Rights Databa se."
70.

The HathiT rust Rights Databa se specifies the purpor ted copyri ght
status of each

work in the HDL, as deteml ined throug h automa ted and manual proces
ses conducted by
23

A-89

HathiTrust, including whether the work is (i) in the public domain, (ii)
in-copyright, (iii) incopyright but has been authorized for certain uses by the associated rights
holder, (iii) incopyright but too brittle to circulate, (iv) of unknown copyright status,
or (v) an orphan work.
For example, UM students, faculty and patrons ofMLi brary, wherever
they may be located
worldwide, may obtain "full view" access of works that are specified

as being in the public

domain and originated from MLibrary.
71.

Upon infonnation and belief, the HDL is capable of providing public
access to the

"full view" of every digital object in the database, even if access is purpor
tedly restricted by
settings in the HathiTrust Rights Database. Thus, if the copyright status
of a work is
misidentified in the HathiTrust Rights Database, the HDL malfunctions
or a user obtains
unauthorized access to the HDL, the work may become fully viewable,
printable and
downloadable by the general public.
72.

In all, through their systematic and concerted digitization efforts, the
Universities

and HathiTrust are responsible for the creation of at least twelve unauth
orized digital copies (six
image files, six digital-text files) of every physical work in their librarie
s that is selected for
digitization: two copies for Google, two copies for the originating Univer
sity, two copies for the
HDL servers at UM, two copies for the HDL servers at IU and two tape
backups of the image
and digital text files at separate UM facilities. Each pair of digital copies
is stored at a different
locatio n and is accessible by different individuals. It is likely that additio
nal copies are made at
some or all of the locations.

HathiT rust Orphan Works Project
73.

On May 16,201 1, MLibr ary announced the launch of the HathiTrust
Orphan

Warks Project - an initiative to identify so-called orphans amongst
the in-copyright works in the
HDL, with an initial focus on works publish ed in the United States betwee
n 1923 and 1963.
24

A-90

John Wilkin, executive director of HathiTrust, published an article estimating that as many as
50% of the volumes in the HDL may be "orphan works."
74.

To identify an in-copyright work as a work HathiTrust will treat as an "orphan,"

the HathiTrust Orphan Works Project purports to follow a multistep due diligence process to
check whether the work is commercially available for sale and, if it is not, to attempt to locate
and contact the copyright holder. If HathiTrust fails to contact the copyright holder, it then lists
the bibliographic information for the work on the HathiTrust Orphan Candidates webpage for
ninety days. If no copyright holder emerges during that time, the work will become available for
"full view" on HathiTrust to UM's students, professors and other authenticated users and visitors
to the libraries at UM's campuses, allowing them to view, download and print the entire
copyrighted work.
75.

In July and August 2011, other HathiTrust members, including Defendants UW,

UC and Cornell, announced their participation in the HathiTrust Orphan Works Project and their
intent to make works in their collections identified as HathiTrust Orphans available to their
respective students, faculty and library patrons.
76.

The first list of HathiTrust Orphan Candidates was posted on the HathiTrust

website on or about July 15,2011.
77.

The initial complaint in this action was filed on September 12,2011. The filing

of the complaint directly led to the identification and emergence of numerous authors and
copyright holders whose works were scheduled to become available for "full view" on
HathiTrust beginning October 13,2011.
78.

On September 16, 2011, MLibrary announced that "[t]he close and welcome

scrutiny of the list of potential orphan works has revealed a number of errors, some of them
serious," and that "we have already begun an examination of our procedures to identify the gaps
25

A-91

that allowe d volume s that are eviden tly not orphan works to be added
to the list." MLibra ry
promis ed, howeve r, that it would "procee d with the work" withou t
specifying a date certain.
79.

Unless e~oined by this Court, copyrig ht protect ed works deemed to
be orphan s

by the HathiT rust process will becom e available for "full view" to
hundre ds of thousa nds of
users affiliat ed with the Universities.

CLAIM FOR RELIEF
80.

Plaintif fs incorpo rate by referen ce paragra phs 1 through 79 as if set
forth herein.

81.

Plainti ffs' copyrig hts specified in Exhibi t A are valid and enforce able.

82.

By scannin g, creatin g multipl e digital copies of and distribu ting copyrig
hted

works - includi ng withou t limitat ion each of Plainti ffs' copyrig hted
works identif ied on Exhibi t
A - on a system atic, continu ous and unauth orized basis, Defend ants
have violate d and are
continu ing to violate Section 108 of the Copyri ght Act and have infring
ed and are continu ing to
infring e Plainti ffs' copyrig hts and exclusi ve rights under Section
106 of the Copyri ght Act.
83.

Defend ants' infring ing acts have been and continu e to be willful ,
intentio nal and

purpos eful, in disrega rd of the rights of Plaintiffs.

84.

Defend ants' conduc t has caused , is causin g and, unless enjoine d by
this Court,

will continu e to cause Plainti ffs great and irrepar able injury that cannot
be remedi ed with money.
Plainti ffs have no adequa te remedy at law.

85.

An actual contro versy presen tly exists betwee n the parties regardi
ng whethe r

Defend ants' ongoin g, system atic digitiz ation of copyrig hted works
withou t authori zation and
their threat to immin ently display the HathiT rust Orphan s withou
t authori zation constit ute and,
unless enjoine d by this Court, will constit ute violatio ns of Section
s 106 and 108 of the Copyri ght
Act.

26

A-92

86.

Because of Defendants' actions and threatened actions as described herein,

including the threat by Defendants HathiTrust and UM to begin display
ing copyrighted
HathiTrust Orphans, there is a substantial controversy between the parties
with adverse legal
interests, of sufficient immediacy and reality to warrant the issuance
of a declaratory judgme nt.
87.

Plaintiffs are entitled to prospective, injunctive and declaratory relief
to enjoin

Defendants from their continuous, ongoing and threatened violations
offede ral copyright law as
described herein.

DEMA ND FOR RELIEF
WHER EFORE , Plaintiffs deman d that:
(a)

Pursuant to 28 U.S.C. § 2201, this Court declare that:

(i)

Defend ants' systematic digitization and distribution of copyrighted
materials withou t authori zation constitutes unlawful copyright
infringement in violatio n of Sections 106 and 108 of the Copyright
Act;

(ii)

Defend ants' distribu tion and display of copyrighted works through
the
HathiTrust Orphan Works Projec t will infringe the copyrig hts of Plaintif
fs
and others likely to be affected;

(b)

Pursuant to 17 U.S.C. § 502, this Court issue an injunction enjoini ng
Defendants

from:
(i)

systematically reprod ucing, distributing and/or display ing Plaintiffs'
or
any other copyri ghted works withou t authorization except as specific
ally
provided by 17 U.S.C. § 108;

(ii)

provid ing to Google for digitiza tion copyrighted works withou t
authorization;

27

A-93

(iii)

proceeding with the HathiTrust Orphans Work Project, including withou
t
limitation, from displaying, distributing or otherwise making availab
le any
so-called orphan work protected by copyright.

(c)

Pursuant to 17 U.S.C. § 503, this Court order the impoundment of all

unauth orized digital copies of works protect ed by copyright within
Defend ants' possession,
custody or control , including works whose copyrights are held by Plaintif
fs, to be held in escrow
under comme rcial grade security, with any computer system storing
the digital copies powere d
down and discon nected from any network, pendin g an appropriate act
of Congress.
(d)

Pursua nt to 17 U.S.C. § 505, this Court award Plaintiffs their attorne
ys' fees and

costs; and
(e)

Plaintiffs be granted such other relief as may be deemed just and equitab
le.

Dated: New York, New York
Octobe r 5, 2011
FRAN KFUR T KURN IT KLEIN &SELZ , P.C.
By:

(~.~~
Edwar d H. Rosenthal, Esq.
Jeremy S. Goldm an, Esq.

488 Madiso n Avenu e
New York, New York 10022
Tel.: [phone]

Attorneys for Plaintiffs

28

1985

Talkin g With Artists:
Volum e 1
Talking With Artists :
Volume 2
Talking With
Adventurers
Oss maIvakter emella n

Vernacular Dreams

Summe r light
Georgi a O'Keeffe : a life
A glimpse of scarlet and
E. Burlingame Books
other stories
A glimpse of scarlet and
HarperPerennial
other stories
Asking for love and other
Rando m House
stories
Sweetw ater: a novel
Rando m House

Pat Cummings

Erik Grundstrom

Angelo Loukakis

Roxana Robinson
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Roxan a Robinson

Roxan a Robinson

Roxan a Robinson

Roxana Robinson

Pat Cummings

Pat Cwnm ings

Simon & Schuster Books
for Young Readers
National Geographic
Society
Alba
University of Queensland
Press
Viking
Harper & Row

Bradbury Press

Universitetsforlaget

2003

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Jimmy Lee Did It

Trond Andreassen

Macrae Smith Company

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A-98
Case 1:11-cv-06351-HB Document 23

Filed 12/02/11 Page 1 of 25

KILPATRICK TOWNSEND & STOCKTON LLP
Joseph Petersen (JP 9071)
31 West 52nd Street, 14th Floor
New York, New York 10019
Telephone: [phone]
Facsimile: [phone]
Joseph M. Beck (admitted pro hac vice)
W. Andrew Pequignot (admitted pro hac vice)
Allison Scott Roach (admitted pro hac vice)
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]

Attorneys for Defendants
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE AUTHORS GUILD, INC., et al.
Plaintiffs,
11 CIV 6351 (HB)(JLC)
v.

DEFENDANTS' JOINT ANSWER
AND DEFENSES

HATHITRUST, et al.
Defendants.

Defendants Julia Donovan Darlow, Laurence B. Deitch, Denise Hitch, Olivia P. Maynard,
Andrea Fischer Newman, Andrew C. Richner, S. Martin Taylor and Katherine E. White, in their
official capacities as The Regents of The University of Michigan (the named Regents are defined
collectively as the "UM Regents," and The University of Michigan is hereinafter referred to as
"UM"); Richard C. Blum, David Crane, William De La Pena, Russell Gould, Eddie Island,
Odessa Johnson, George Kieffer, Sherry L. Lansing, Monica Lozano, Hadi Makarechian, George
M. Marcus, Alfredo Mireles, Jr., Norman J. Pattiz, Bonnie Reiss, Fred Ruiz, Leslie Tang
Schilling, Bruce D. Varner, Paul Wachter and Charlene Zettel, in their official capacities as
appointed members of the Board of The Regents of the University of California (the named

A-99
Case 1:11-cv-06351-HB Document 23

Filed 12/02/11 Page 2 of 25

members of the Board are defined collectively as the “UC Regents,” and The Regents of the
University of California is hereinafter referred to as “UC”); Jeffrey Bartell, Mark J. Bradley,
Judith V. Crain, John Drew, Tony Evers, Michael J. Falbo, Edmund Manydeeds, Katherine
Pointer, Charles Pruitt, Troy Sherven, Brent Smith, Michael J. Specter, S. Mark Tyler, Jose F.
Vasquez And David G. Walsh, in their official capacities as The Board of Regents of The
University of Wisconsin (the named members of the Board are defined collectively as the “UW
Regents,” and The University of Wisconsin is hereinafter referred to as “UW”); William R. Cast,
Patrick A. Shoulders, Maryellen Kiley Bishop, Bruce Cole, Philip N. Eskew, Jr., Cora J. Griffin,
Thomas E. Reilly, Jr., Derica W. Rice and William H. Strong, in their official capacities as The
Trustees of Indiana University (the named Trustees are defined collectively as the “IU Trustees,”
and Indiana University is hereinafter referred to as “IU”); Cornell University (“Cornell”) (UM,
UC, UW, IU, and Cornell are collectively referred to as the “Universities” and each may be
referred to individually as a “University”); and HathiTrust, which is the name of a service
provided by UM under agreements with member institutions including the Universities (but only
to the extent that HathiTrust constitutes an entity capable of being sued, which Defendants
contend it does not) (“HathiTrust Service”) (collectively, “Defendants”) hereby state the
following for their JOINT ANSWER AND DEFENSES to the First Amended Complaint filed
by the Plaintiffs in the above-captioned action (“Plaintiffs”).

Defendants respond to the

paragraphs of the First Amended Complaint (“FAC”) in correspondingly numbered paragraphs.
Defendants deny each allegation in the FAC unless expressly admitted.
1.

Defendants admit that Plaintiffs, in the FAC, seek prospective injunctive and

declaratory relief but deny that Plaintiffs are entitled to such relief. Defendants admit that “the
Regents of the University of Michigan/University Library, Ann Arbor Campus”; “The Regents

2
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Case 1:11-cv-06351-HB Document 23

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ofthe University of California on behalf of its California Digital Library"; "the Board of Regents
of the University of Wisconsin System, d/b/a the University of Wisconsin-Madison, General
Library System"; and Cornell University entered into agreements with Google Inc. ("Google")
regarding the digitization of works in their libraries' collections, and that The Board of Trustees
of the University of Illinois, on behalf of the Committee on Institutional Cooperation ("CIC")
and its member universities (the "CIC Universities"), entered into an agreement with Google
regarding the digitization of works in the CIC Universities' library collections. Defendants
further admit that "HathiTrust" is the name of a service ofUM in which the Universities and
other institutions participate under agreements with UM. Defendants admit that Defendants have
engaged in uses of and activities with respect to the works, which uses are permitted under the
United States Copyright Act (the "Copyright Act"). Defendants lack knowledge or information
sufficient to form a belief about whether Plaintiffs hold a copyright in any work used by
Defendants and thus deny such allegations. Defendants deny the remaining allegations in
Paragraph 1 of the FAC.
2.

Defendants admit that pursuant to Google's various agreements with the Regents

of the University of Michigan/University Library, Ann Arbor Campus; The Regents of the
Uni versity of California on behalf of its California Digital Library; the Board of Regents of the
University of Wisconsin System, d/b/a the University of Wisconsin-Madison, General Library
System; Cornell University; and The Board of Trustees of the University of Illinois, on behalf of
the CIC and the CIC Universities, Google has provided digital copies of books from a
University's library's collections either to that University or, at the University's request, to the
University of Michigan Library in Ann Arbor (the "MLibrary"), and that the Universities store
these digital copies in a repository called the HathiTrust Digital Library ("HDL"), which

3
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Case 1:11-cv-06351-HB Document 23

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contains at least 9.7 million volumes. Defendants also admit that the Universities participate in
the HathiTrust Service along with more than fifty other institutions. Defendants lack knowledge
or infonnation sufficient to fonn a belief about whether seventy-three percent (73%) ofthese
volumes are protected by copyright and thus deny such allegations. Defendants deny the
remaining allegations in Paragraph 2 of the FAC.
3.

Defendants admit that UM and UC have announced their participation in the

Orphan Works Project ("OWP"), an initiative to, inter alia, identify "orphan works"-incopyright works for which the copyright holder cannot be found-and eventually to make lawful
uses of these works. Defendants also admit that Cornell and UW have announced plans to
participate in the OWP and that IV has not announced plans to participate in the OWP.
Defendants deny the remaining allegations in Paragraph 3 of the FAC.
4.

Defendants admit that the Universities have asserted that their activities are

beneficial to society and pennissible under a variety of sections of the Copyright Act, including
as fair use, which received statutory recognition in Section 107 of the Copyright Act.
Defendants deny the remaining allegations in Paragraph 4 of the FAC.
5.

Defendants admit that, in a separate case, Google and The Authors Guild, Inc.

(among other parties) filed a motion for approval of a proposed settlement agreement that was
denied by the court. The referenced proposed settlement agreement and court order denying
approval speak for themselves. Defendants deny the remaining allegations in Paragraph 5 of the
FAC.
6.

Defendants deny the allegations in Paragraph 6 of the FAC.

7.

Defendants deny the allegations in Paragraph 7 of the FAC.

4
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Case 1:11-cv-06351-HB Document 23

8.

Filed 12/02/11 Page 5 of 25

Defendants admit that the FAC seeks injunctive relief and purports to state claims

for copyright infringement under the United States Copyright Act, 17 U.S.C. 101

~~.

and

seeks declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, but Defendants deny that any
such infringement has occurred, deny that Plaintiffs are entitled to the relief sought, and
otherwise deny the remaining allegations in Paragraph 8 of the FAC.
9.

Defendants deny the allegations in Paragraph 9 of the FAC.

10.

Defendants deny the allegations in Paragraph 10 of the FAC.

11.

Cornell admits the allegations in Paragraph 11 of the FAC, and the remaining

Defendants deny the allegations in Paragraph 11 of the FAC.
12.

Upon information and belief, Defendants admit that The Authors Guild, Inc. is a

corporation with a place of business at 31 East 32nd Street, New York, New York, 10016.
Defendants lack knowledge or information sufficient to form a belief about the truth of the
remaining allegations in Paragraph 12 of the FAC and thus deny such allegations.
13.

Defendants admit that a book entitled "Good Troupers All: The Story of Joseph

Jefferson" by Gladys Malvern was digitized and included in the HDL and was preliminarily
identified as a book that UM planned to make available on the limited basis contemplated as part
of the OWP if the copyright holder were not identified, and Defendants otherwise deny the
allegation that such book was "unlawfully reproduced, digitized and distributed" by Defendants.
Defendants lack knowledge or information sufficient to form a belief about the truth of the
remaining allegations in Paragraph 13 of the FAC and thus deny such allegations.
14.

Defendants lack knowledge or information sufficient to form a belief about the

truth of the allegations in Paragraph 14 of the FAC and thus deny such allegations.

5
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Case 1:11-cv-06351-HB Document 23

15.

Filed 12/02/11 Page 6 of 25

Defendants lack knowledge or information sufficient to form a belief about the

truth of the allegations in Paragraph 15 ofthe FAC and thus deny such allegations.
16.

Defendants lack knowledge or information sufficient to form a belief about the

truth of the allegations in Paragraph 16 of the FAC and thus deny such allegations.
17.

Defendants lack knowledge or information sufficient to form a belief about the

truth of the allegations in Paragraph 17 of the FAC and thus deny such allegations.
18.

Defendants lack knowledge or information sufficient to form a belief about the

truth of the allegations in Paragraph 18 ofthe FAC and thus deny such allegations.
19.

Defendants lack knowledge or information sufficient to form a belief about the

truth of the allegations in Paragraph 19 of the FAC and thus deny such allegations.
20.

Defendants deny that the "Associations" have associational standing to pursue

claims for declaratory and injunctive relief on behalf of their members. Defendants also deny
that participation of the Associations' individual members would not be required to resolve the
issues in this case. Defendants lack knowledge or information sufficient to form a belief about
the truth of the remaining allegations in Paragraph 20 of the FAC and thus deny such allegations.
21.

Defendants lack knowledge or information sufficient to form a belief about the

truth ofthe allegations in Paragraph 21 of the FAC and thus deny such allegations.
22.

Defendants admit that the book identified in Exhibit A to the FAC that is referred

to in Paragraph 22 of the FAC was digitized and included in the HDL, and Defendants otherwise
deny the allegation that such book was "unlawfully reproduced, digitized and distributed" by
Defendants. Defendants lack knowledge or information sufficient to form a belief about the
truth of the remaining allegations in Paragraph 22 of the FAC and thus deny such allegations.

6
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Case 1:11-cv-06351-HB Document 23

23.

Filed 12/02/11 Page 7 of 25

Defendants admit that the books identified in Exhibit A to the FAC that are

referred to in Paragraph 23 of the FAC were digitized and included in the HDL, and Defendants
otherwise deny the allegation that such books were "unlawfully reproduced, digitized and
distributed" by Defendants. Defendants lack knowledge or information sufficient to form a
belief about the truth of the remaining allegations in Paragraph 23 of the FAC and thus deny
such allegations.
24.

Defendants admit that the book identified in Exhibit A to the FAC that is referred

to in Paragraph 24 of the FAC was digitized and included in the HDL, and Defendants otherwise
deny the allegation that such book was "unlawfully reproduced, digitized and distributed" by
Defendants. Defendants lack knowledge or information sufficient to form a belief about the
truth of the remaining allegations in Paragraph 24 of the FAC and thus deny such allegations.
25.

Defendants admit that the book identified in Exhibit A to the FAC that is referred

to in Paragraph 25 ofthe FAC was digitized and included in the HDL, and Defendants otherwise
deny the allegation that such book was "unlawfully reproduced, digitized and distributed" by
Defendants. Defendants lack knowledge or information sufficient to form a belief about the
truth of the remaining allegations in Paragraph 25 of the FAC and thus deny such allegations.
26.

Defendants admit that the books identified in Exhibit A to the FAC that are

referred to in Paragraph 26 of the FAC were digitized and included in the HDL, and Defendants
otherwise deny the allegation that such books were "unlawfully reproduced, digitized and
distributed" by Defendants. Defendants lack knowledge or information sufficient to form a
belief about the truth of the remaining allegations in Paragraph 26 ofthe FAC and thus deny
such allegations.

7
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Case 1:11-cv-06351-HB Document 23

27.

Filed 12/02/11 Page 8 of 25

Defendants admit that the books identified in Exhibit A to the FAC that re

referred to in Paragraph 27 of the FAC were digitized and included in the HDL, and Defendants
otherwise deny the allegation that such books were "unlawfully reproduced, digitized and
distributed" by Defendants. Defendants lack knowledge or information sufficient to form a
belief about the truth ofthe remaining allegations in Paragraph 27 of the FAC and thus deny
such allegations.
28.

Defendants admit that the books identified in Exhibit A to the FAC that are

referred to in Paragraph 28 of the FAC were digitized and included in the HDL, and Defendants
otherwise deny the allegation that such books were "unlawfully reproduced, digitized and
distributed" by Defendants. Defendants lack knowledge or information sufficient to form a
belief about the truth ofthe remaining allegations in Paragraph 28 ofthe FAC and thus deny
such allegations.
29.

Defendants admit that the books identified in Exhibit A to the FAC that are

referred to in Paragraph 29 of the FAC were digitized and included in the HDL and that a book
entitled "Lost Country" by Jack Salamanca was preliminarily identified as a book that UM
planned to make available on the limited basis contemplated as part of the OWP if the copyright
holder were not identified, and Defendants otherwise deny the allegation that such books were
"unlawfully reproduced, digitized and distributed" by Defendants. Defendants lack knowledge
or information sufficient to form a belief about the truth of the remaining allegations in
Paragraph 29 of the FAC and thus deny such allegations.
30.

Defendants admit that the book identified in Exhibit A to the FAC that is referred

to in Paragraph 30 of the FAC was digitized and included in the HDL, and Defendants otherwise
deny the allegation that such book was "unlawfully reproduced, digitized and distributed" by

8
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Case 1:11-cv-06351-HB Document 23

Filed 12/02/11 Page 9 of 25

Defendants. Defendants lack knowledge or information sufficient to form a belief about the
truth of the remaining allegations in Paragraph 30 of the FAC and thus deny such allegations.
31.

Defendants admit that the book identified in Exhibit A to the FAC that is referred

to in Paragraph 31 of the FAC was digitized and included in the HDL, and Defendants otherwise
deny the allegation that such book was "unlawfully reproduced, digitized and distributed" by
Defendants. Defendants lack knowledge or information sufficient to form a belief about the
truth of the remaining allegations in Paragraph 31 of the FAC and thus deny such allegations.
32.

Defendants admit that the book identified in Exhibit A to the FAC that is referred

to in Paragraph 32 of the FAC was digitized and included in the HDL, and Defendants otherwise
deny the allegation that such book was "unlawfully reproduced, digitized and distributed" by
Defendants. Defendants lack knowledge or information sufficient to form a belief about the
truth of the remaining allegations in Paragraph 32 of the FAC and thus deny such allegations.
33.

Defendants admit that the books identified in Exhibit A to the FAC that are

referred to in Paragraph 33 of the FAC were digitized and included in the HDL, and Defendants
otherwise deny the allegation that such books were "unlawfully reproduced, digitized and
distributed" by Defendants. Defendants lack knowledge or information sufficient to form a
belief about the truth of the remaining allegations in Paragraph 33 of the FAC and thus deny
such allegations.
34.

Defendants admit that UM is a state university comprising three campuses with a

principal place of business in Ann Arbor, Michigan. Defendants also admit that UM is governed
by its Board of Regents. Defendants further admit that UM owns, operates, and controls
MLibrary and that, upon information and belief, MLibrary is one of the largest university library
systems in the United States, holding more than 8.5 million volumes and with more than 3

9
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Case 1:11-cv-06351-HB Document 23

Filed 12/02/11 Page 10 of 25

million patron visits per year to its facilities and its website. Defendants also admit that on or
about December 14, 2004, "the Regents of the University of MichiganlUniversity Library, Ann
Arbor Campus" entered into a Cooperative Agreement with Google to digitize works from the
MLibrary collection (the "UM-Google Cooperative Agreement"). Defendants further admit that
UM is a co-founder, host, and primary administrator of the HathiTrust Service and is the largest
contributor to the HDL, which contains the collection of digital works with respect to which the
HathiTrust Service operates. Defendants deny the remaining allegations in Paragraph 34 of the
FAC.
35.

Defendants admit that UC is a public trust comprising ten campuses with a

principal place of business in Oakland, California. Defendants also admit that UC is governed
by its Board of Regents. Defendants further admit that UC owns, operates, and controls the UC
library system, that the UC library system consists of more than 100 libraries, and that, upon
information and belief, the UC library system collectively is the largest research/academic
library in the world. Defendants also admit that on or about August 3,2006, "The Regents of the
University of California on behalf of its California Digital Library" entered into a Cooperative
Agreement with Google to digitize works from UC's libraries (the "UC-Google Cooperative
Agreement"). Defendants further admit that UC is a co-founder of the HathiTrust Service and is
the second largest contributor to the HDL. Defendants also admit that UC announced on August
24, 2011 its intention to join the OWP. Defendants deny the remaining allegations in Paragraph
35 of the FAC.
36.

Defendants admit that UW is a state university system comprising twenty-six

campuses with a principal place of business in Madison, Wisconsin. Defendants also admit that
UW is governed by its Board of Regents. Defendants further admit that UW owns, operates, and

10
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Case 1:11-cv-06351-HB Document 23

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controls the UW library system, holding more than 8 million volumes. Defendants also admit
that on or about October 12, 2006, the "the Board of Regents of the University of Wisconsin
System, d/b/a the University of Wisconsin-Madison, General Library System" entered into a
Cooperative Agreement with Google to digitize works from UW's libraries (the "UW-Google
Cooperative Agreement"). Defendants further admit that UW is a co-founder of the HathiTrust
Service and is the third largest contributor to the HDL. Defendants also admit that UW's
intention to participate in the OWP became public on June 23, 2011. Defendants deny the
remaining allegations in Paragraph 36 ofthe FAC.
37.

Defendants admit that "the trustees ofIndiana University" governs IU, which is a

body politic of the State ofIndiana, a State institution of higher education comprising eight
campuses with a principal place of business in Bloomington, Indiana. Defendants aver that the
campus at Fort Wayne, called Indiana University-Purdue University Fort Wayne, is managed by
Purdue University. Defendants further admit that IV owns, operates, and controls the IU library
system, holding more than 7.8 million books in over 900 languages. Defendants also admit that
IU's Bloomington campus is a member of the crc, a consortium of Big Ten universities plus the
University of Chicago. Defendants further admit that on or about June 6,2007, The Board of
Trustees of the University of Illinois, on behalf of the crc and the CIC Universities, entered into
a Cooperative Agreement with Google to digitize works from CIC Universities' libraries (the
"CIC-Google Cooperative Agreement"). Defendants further admit that IV's Bloomington
campus is the seventh largest contributor to the HDL. Defendants admit that a fully operational,
synchronized, and live "mirror site" of the HDL is located on IV's Indianapolis campus.
Defendants deny the remaining allegations in Paragraph 37 of the FAC.

11
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Case 1:11-cv-06351-HB Document 23

38.

Filed 12/02/11 Page 12 of 25

Defendants admit that Cornell is a corporation and private land-grant university

with its principal place of business in Ithaca, New York. Defendants also admit that Cornell
owns, operates, and controls the Cornell library, holding more than 8 million volumes.
Defendants further admit that on or about August 6, 2007, Cornell entered into a Cooperative
Agreement with Google to digitize works from the Cornell library (the "Cornell-Google
Cooperative Agreement"). Defendants also admit that Cornell is the fourth largest contributor to
the HDL. Defendants further admit that Cornell announced on August 24,2011 its intention to
join the OWP. Defendants deny the remaining allegations in Paragraph 38 of the FAC.
39.

Defendants admit that "HathiTrust" is the name of a service through which more

than fifty institutions, which include universities, libraries, educational institutions, and
consortia, are collaborating with UM to create a reliable and increasingly comprehensive digital
repository of books. Defendants also admit that UM's principal place of business for purposes of
providing the HathiTrust Service is in Ann Arbor, Michigan. Defendants further admit that as of
October 5, 2011, the HDL contained 9,709,348 volumes, amounting to 435 terabytes of data.
Defendants deny the remaining allegations in Paragraph 39 of the FAC.
40.

Defendants admit that libraries and archives provide a tremendous societal value

in preserving and securing works of art, literature, and science. Defendants also admit that
Section 108 of the Copyright Act is one of many limitations on copyright holders' rights.
Defendants deny the remaining allegations in Paragraph 40 of the FAC.
41.

Defendants admit that Section 108(b) permits a library to make three copies of an

unpublished work for preservation and security purposes (among other purposes). Defendants
also admit that Section 108( c) permits a library to make three copies of a published work.
Defendants deny the remaining allegations in Paragraph 41 of the FAC.

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42.

Filed 12/02/11 Page 13 of 25

Defendants respond to Paragraph 42 by stating that Section 108 ofthe Copyright

Act, as it has existed at various times, speaks for itself. Defendants further respond that
Plaintiffs' description of Section 108 is incomplete and therefore mischaracterizes the statute.
Defendants thus deny the allegations in Paragraph 42 of the PAC.
43.

Defendants admit that Paragraph 43 appears to be an accurate quote of selected

text (with Plaintiffs' emphasis) from Senate Report No.1 05-190 (1998), which speaks for itself,
and therefore is an incomplete and inaccurate representation of the legislative history.
Defendants deny the remaining allegations in Paragraph 43 of the PAC.
44.

Defendants respond to Paragraph 44 by stating that Section 108 of the Copyright

Act, as it has existed at various times, speaks for itself. Defendants further respond that
Plaintiffs' description of Section 108 is incomplete and therefore mischaracterizes the statute.
Defendants thus deny the allegations in Paragraph 44 of the PAC.
45.

Defendants respond to Paragraph 45 by stating that Section 108 of the Copyright

Act, as it has existed at various times, speaks for itself. Defendants further respond that
Plaintiffs misquote Section 108 and that Plaintiffs' description of Section 108 is incomplete and
therefore mischaracterizes the statute. Defendants thus deny the allegations in Paragraph 45 of
the PAC.
46.

Defendants admit the allegations in Paragraph 46 of the PAC.

47.

Defendants deny the allegations in Paragraph 47 of the PAC.

48.

Defendants deny the allegations in Paragraph 48 of the PAC.

49.

Defendants lack knowledge or information sufficient to form a belief about the

truth ofthe allegations in Paragraph 49 regarding an announcement made by Google; regarding
whether, when, and with whom Google has formed partnerships; and regarding whether Google

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Filed 12/02/11 Page 14 of 25

and "its partners" have digitized more than 12 million books and thus deny such allegations.
Defendants admit that on or about August 3, 2006, The Regents ofthe University of California
on behalf of its California Digital Library entered the UC-Google Cooperative Agreement; that
on or about October 12, 2006, the Board of Regents of the University of Wisconsin System,
d/b/a the University of Wisconsin-Madison, General Library System entered the UW-Google
Cooperative Agreement; that on or about June 6, 2007, The Board of Trustees of the University
of Illinois, on behalf of the CIC and the CIC Universities, entered the CIC-Google Cooperative
Agreement; and that on or about August 6,2007, Cornell entered the Cornell-Google
Cooperative Agreement. Defendants deny the remaining allegations in Paragraph 49 of the
FAC.
50.

Defendants admit that pursuant to the UM-Google Cooperative Agreement, UM

cooperates with Google to identify books from UM's collection to be digitized; that pursuant to
the UC-Google Cooperative Agreement, UC cooperates with Google to identify books from
UC's collection to be digitized; that pursuant to the UW-Google Cooperative Agreement, UW
cooperates with Google to identify books from UW's collection to be digitized; that pursuant to
the CIC-Google Cooperative Agreement, each ofthe CIC Universities, including IU, cooperates
with Google to identify books from their individual collections to be digitized; and that pursuant
to the Cornell-Google Cooperative Agreement, Cornell cooperates with Google to identify books
from Cornell's collection to be digitized. Defendants admit that the books selected for
digitization pursuant to these agreements are not limited to works in the public domain,
unpublished works, or deteriorating published works that cannot be replaced, and include in-print
books that are commercially available and books that are protected by copyright. Defendants
further admit that pursuant to the tenns ofthese various agreements, the works selected for

14
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Filed 12/02/11 Page 15 of 25

digitization are delivered to a facility that is located either on or off the University's campus and
that is occupied by Google personnel and scanning equipment. Defendants deny the remaining
allegations in Paragraph 50 of the FAC.
51.

Defendants admit that Google has digitized books owned by the Universities'

libraries. Defendants lack knowledge or information sufficient to form a belief about the truth of
the allegations regarding "Google Books" and Google's actions with respect to "Google Books"
and thus deny the remaining allegations in Paragraph 51 of the FAC.
52.

Defendants admit that pursuant to Google's various agreements with the Regents

of the University of MichiganlUniversity Library, Ann Arbor Campus; The Regents of the
University of California on behalf of its California Digital Library; the Board of Regents of the
University of Wisconsin System, d/b/a the University of Wisconsin-Madison, General Library
System; Cornell University; and The Board of Trustees ofthe University of Illinois, on behalf of
the CIC and the CIC Universities, after digitizing a book from the collection of a University,
Google may provide a digital copy of the book to the University library or, at the University's
request, to MLibrary to be incorporated into the HDL, and Defendants admit that the terms of
these various agreements provide that the digital copy include a set of image and OCR files and
associated meta-information about the files. Defendants also admit that books that leave the
premises of the Universities' libraries to be digitized are returned to the libraries. Defendants
deny the remaining allegations in Paragraph 52 of the FAC.
53.

Defendants admit that some libraries have estimated their costs of performing the

act of digitization at approximately $100 per volume. Defendants deny the remaining allegations
in Paragraph 53 of the FAC.

15
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54.

Filed 12/02/11 Page 16 of 25

Defendants admit that certain Universities, including UM, have digitized works in

their library collections. Defendants deny the remaining allegations in Paragraph 54 of the FAC.
55.

Defendants lack knowledge or infonnation sufficient to fonn a belief about the

truth of the allegations in Paragraph 55 ofthe FAC and thus deny such allegations.
56.

Defendants admit that The Authors Guild, Inc. and others filed a purported class

action lawsuit against Google in the Southern District of New York, Authors Guild, Inc. v.
Google, Inc., Case No. 05 Civ. 8136 (S.D.N.Y. filed Sept. 20, 2005), involving Google's

digitization of books (the "Google Books Lawsuit"). The complaint in the Google Books
Lawsuit speaks for itself, and therefore Defendants deny the remaining allegations in Paragraph
56 of the FAC.
57.

Defendants admit that Google and The Authors Guild, Inc. (among other parties)

filed a motion for approval of a proposed settlement agreement in the Google Books Lawsuit.
The proposed settlement agreement speaks for itself, and therefore Defendants deny the
remaining allegations in Paragraph 57 of the FAC.
58.

Defendants admit that the motion for approval of the proposed settlement

agreement was denied on March 22, 2011. Defendants also admit that Paragraph 58 of the FAC
accurately quotes from Judge Denny Chin's decision. Judge Chin's decision speaks for itself,
and therefore Defendants deny the remaining allegations of Paragraph 58 of the FAC.
59.

Defendants admit that Paragraph 59 of the FAC accurately quotes from Judge

Denny Chin's decision, which speaks for itself. Defendants deny the remaining allegations in
Paragraph 59 of the FAC.
60.

Defendants admit that Judge Denny Chin's decision noted efforts by Congress to

pass orphan works legislation. Defendants also admit that the decision discussed international

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law concerns raised by foreign authors and entities regarding the ASA. Judge Chin's decision
speaks for itself. Defendants deny the remaining allegations in Paragraph 60 of the FAC.
61.

Defendants admit that the Google Books Lawsuit is still pending in the Southern

District of New York.
62.

Defendants admit that on October 13, 2008, the thirteen universities comprising

the CIC, led by UM; UC's libraries, led by the CDL; and the University of Virginia announced
the launch of the HathiTrust Service and the HDL, the shared repository of digital collections of
institutions participating in the HathiTrust Service. Defendants also admit that there are
currently more than fifty institutions, including universities, libraries, educational institutions,
and consortia, from around the world participating in the HathiTrust Service. Defendants further
admit that the website for the HathiTrust Service states that the mission ofthe HathiTrust Service
is "to contribute to the common good by collecting, organizing, preserving, communicating, and
sharing the record of human knowledge." Defendants deny the remaining allegations in
Paragraph 62 ofthe FAC.
63.

Defendants admit that digital copies of works in the Universities' libraries that

were digitized by Google, other organizations such as the Internet Archive, or the Universities'
libraries' staff have been deposited into the HDL by the Universities or at their request. UM
Regents, the HathiTrust Service, and UC Regents admit that digital copies deposited in the HDL
by some institutions have been delivered to the HDL over the Internet or via removable media,
and the remaining Defendants lack knowledge or information sufficient to form a belief about
the truth of the allegations in the third sentence of Paragraph 63 of the FAC and thus deny such
allegations. Defendants deny the remaining allegations in Paragraph 63 of the FAC.

17
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64.

Filed 12/02/11 Page 18 of 25

Defendants admit that the incorporation of digital works and their associated

metadata into the HDL is performed at MLibrary, and deny the remaining allegations in the first
sentence of Paragraph 64 of the FAC. UM Regents, the HathiTrust Service, and IU Trustees
admit that the digital works and associated metadata are replicated to an active mirror site
located on IU's Indianapolis campus and are stored on backup tapes located at UM's facilities,
and deny the remaining allegations in Paragraph 64 of the FAC. The remaining Defendants lack
knowledge or information sufficient to form a belief about the truth ofthe allegations in the
second sentence of Paragraph 64 of the FAC and thus deny such allegations.
65.

Defendants incorporate their responses to Paragraphs 66-68 of the F AC and deny

the allegations in Paragraph 65 of the FAC.
66.

UM Regents, the HathiTrust Service, and IV Trustees admit that the HathiTrust

Service provides a clustered storage system to hold more than 435 terabytes of digital files
deposited into the HDL by or at the request of institutions participating in the HathiTrust
Service; that the architecture for storing the HDL and operating the HathiTrust Service employs
two synchronized instances of server farms (each including at least two web servers, a database
server, and a storage cluster), with the primary site located at UM's Ann Arbor, Michigan
campus where incorporation into the HDL occurs, and a mirror site located at IU's Indianapolis
campus; that the HathiTrust Service includes routine tape backups of all data in the HDL; and
that these tapes are stored at a facility on UM's campus and are replicated to create a second
backup stored at a separate facility on UM's campus. UM Regents, the HathiTrust Service, and
IU Trustees deny the remaining allegations in Paragraph 66 of the FAC. UW Regents admit that
the HathiTrust Service provides a clustered storage system to hold more than 435 terabytes of
digital files deposited into the HDL by institutions participating in the HathiTrust Service, and

18
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that the architecture for storing the HDL and operating the HathiTrust Service employs two
synchronized instances of server farms (each including at least two web servers, a database
server, and a storage cluster), with the primary site located at UM's Ann Arbor, Michigan
campus where ingestion occurs, and a mirror site located at IU's Indianapolis campus. UW
Regents lack knowledge or information sufficient to form a belief about the truth of the
allegations in the third and fourth sentences of Paragraph 66 of the FAC and thus deny such
allegations, and UW Regents deny the remaining allegations in Paragraph 66 of the FAC. The
remaining Defendants lack knowledge or information sufficient to form a belief about the truth
of the allegations in Paragraph 66 of the FAC and thus deny such allegations.
67.

Defendants admit that this is an accurate quote from the HathiTrust Service

website. Defendants also admit that the HathiTrust Service preserves and secures books that are
in-copyright, published, and commercially-available. Defendants deny the remaining allegations
in Paragraph 67 of the FAC.
68.

Defendants admit that the HathiTrust Service includes a search tool that permits

users to conduct full-text searches of the works in the HDL to determine the number of times a
searched term appears, and the page numbers on which the searched term appears, in books in
the HDL (including public domain and in-copyright works). Defendants deny the remaining
allegations in Paragraph 68 of the FAC.
69.

Defendants admit that the HathiTrust Service permits certain users to view,

search, print, and download full copies of certain volumes in the HDL, and Defendants admit
that the level of access to a work is determined in part by the identity of the user and the
copyright status of the work, and deny the remaining allegations in Paragraph 69 of the FAC.

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70.

Filed 12/02/11 Page 20 of 25

Defendants admit that the HathiTrust Rights Database includes categorizations of

copyright status for each work in the HDL, as determined through processes conducted as part of
the HathiTrust Service or through other resources. Defendants also admit that the HDL allows
users to view books identified as being in the public domain on the HathiTrust Service website,
wherever the users may have access to the website. Defendants deny the remaining allegations
of Paragraph 70 of the FAC.
71.

Defendants deny the allegations in Paragraph 71 of the FAC.

72.

Defendants deny the allegations in Paragraph 72 of the FAC.

73.

Defendants admit the allegations in Paragraph 73 of the FAC.

74.

Defendants admit that to identify whether an in-copyright work in the HDL is an

orphan work under its OWP pilot process, the OWP staff undertook a multi-step due diligence
process to check whether the work is commercially available for sale and, ifit is not, to attempt
to locate and contact the copyright holder. Defendants also admit that, under the pilot process, if
the OWP staff were unsuccessful in identifying a copyright holder, the bibliographic information
for the work would have been listed on the HathiTrust Service website for ninety days.
Defendants further admit that, under the pilot process, if no copyright holder emerged during the
ninety days, and ifUM owned a physical copy ofthe work in its collection, UM, through the
HathiTrust Service, planned to make the work available on a limited basis to UM students,
professors, and other authenticated users and visitors to the libraries at UM' s campuses, to view
the work in full, print the work one page at a time, and download the work one page at a time in
single-page PDF files. Defendants admit that no works have been made available through the
OWP and that the OWP pilot procedures are currently being reexamined. Defendants deny the
remaining allegations in Paragraph 74 ofthe FAC.

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75.

Filed 12/02/11 Page 21 of 25

Defendants admit that in July and August of 20 11, other participants in the

HathiTrust Service, including UC and Cornell, announced their intent to participate in the OWP
and their intent to make works in their collections identified as orphan works available on a
limited basis to their respective students, faculty, and library patrons. Defendants deny the
remaining allegations in Paragraph 75 ofthe FAC.
76.

Defendants admit that a list of orphan work candidates was posted on the

HathiTrust Service website on or about July 15, 2011.
77.

Defendants admit that the initial complaint in this action was filed on September

12, 2011. Defendants deny the remaining allegations in Paragraph 77 of the FAC.
78.

Defendants admit that on September 16, 2011, MLibrary issued a statement, the

text of which is quoted in full below:
The close and welcome scrutiny of the list of potential orphan works has revealed
a number of errors, some of them serious. This tells us that our pilot process is
flawed.
Having learned from our mistakes-we are, after all, an educational institutionwe have already begun an examination of our procedures to identify the gaps that
allowed volumes that are evidently not orphan works to be added to the list. Once
we create a more robust, transparent, and fully documented process, we will
proceed with the work, because we remain as certain as ever that our proposed
uses of orphan works are lawful and important to the future of scholarship and
the libraries that support it.
It was always our belief that we would be more likely to succeed with the

cooperation and assistance of authors and publishers. This turns out to be correct.
The widespread dissemination ofthe list has had the intended effect: rights
holders have been identified, which is in fact the project's primary goal. And as a
result of the design of our process, our mistakes have not resulted in the exposure
of even one page of in-copyright material.
Defendants deny the remaining allegations in Paragraph 78 of the FAC.
79.

Defendants deny the allegations in Paragraph 79 of the FAC.

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80.

Defendants incorporate by reference their responses to Paragraphs 1 through 79

81.

Defendants lack knowledge or infonnation sufficient to fonn a belief about the

above.

truth of the allegations in Paragraph 81 of the FAC and thus deny such allegations.
82.

Defendants deny the allegations in Paragraph 82 of the FAC.

83.

Defendants deny the allegations in Paragraph 83 of the FAC.

84.

Defendants deny the allegations in Paragraph 84 of the FAC.

85.

Defendants deny the allegations in Paragraph 85 of the FAC.

86.

Defendants deny the allegations in Paragraph 86 of the FAC.

87.

Defendants deny the allegations in Paragraph 87 of the FAC.

DEFENDANTS' AFFIRMATIVE DEFENSES AND OTHER DEFENSES

In further answer to the FAC, and by way of affinnative defenses and other defenses,
Defendants state that they will rely upon the following defenses if applicable and if supported by
the facts. Defendants do not admit that they bear the burden of proof for any of these defenses.
A.

The FAC fails to state a claim upon which relief can be granted.

B.

Plaintiffs' claims against the UM Regents, UC Regents, UW Regents, and IU
Trustees are barred by state sovereign immunity.

C.

Plaintiffs' claims against the UM Regents, UC Regents, UW Regents, and IU
Trustees are barred by the Eleventh Amendment.

D.

Plaintiffs' claims against "HathiTrust" are barred because "HathiTrust" is a
service ofUM and is not itself a legal entity and does not have the capacity to be
sued as a distinct entity.

E.

The Court lacks personal jurisdiction over some or all of Defendants.

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Case 1:11-cv-06351-HB Document 23

F.

Filed 12/02/11 Page 23 of 25

The Court lacks subject matter jurisdiction because some or all of Plaintiffs lack
statutory and Article III standing to bring this action.

G.

The Court lacks subject matter jurisdiction over Plaintiffs' OWP claims because
the case or controversy is not ripe for adjudication.

H.

Plaintiffs are not entitled to declaratory judgment relief with respect to Plaintiffs'
OWP claims because no case or controversy exists between the parties.

L

Defendants' use of and activities with respect to the works that are subject to
copyright are protected under the First Amendment of the United States
Constitution.

J.

Defendants' use of and activities with respect to the works that are subject to
copyright are non-infringing fair uses and do not require authorization pursuant to
Section 107 of the Copyright Act.

K.

Defendants' use of and activities with respect to the works that are subject to
copyright are non-infringing and do not require authorization pursuant to Section
108 of the Copyright Act.

L.

Defendants' use of and activities with respect to the works that are subject to
copyright are non-infringing and do not require authorization pursuant to Section
109 of the Copyright Act.

M.

Defendants' use of and activities with respect to the works that are subject to
copyright are permitted under Section 110 of the Copyright Act.

N.

Defendants' use of and activities with respect to the works that are subject to
copyright are non-infringing and do not require authorization pursuant to Section
121 of the Copyright Act.

23
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Case 1:11-cv-06351-HB Document 23

O.

Filed 12/02/11 Page 24 of 25

Some or all of Plaintiffs' claims are barred by the statute oflimitations under the
Copyright Act.

P.

Some or all of Plaintiffs' claims are barred by the doctrine oflaches as a result of
Plaintiffs' unreasonable delay in bringing this lawsuit.

Q.

Some or all of Plaintiffs' claims are barred by the doctrine of estoppel because
Defendants detrimentally relied on Plaintiffs' conduct leading up to this lawsuit.

R.

Some or all of Plaintiffs' claims are barred because the copyright holder
consented to Defendants' use of and activities with respect to the works.

S.

Some or all of the copyrights upon which Plaintiffs rely have been waived or
abandoned.

T.

Some or all of Plaintiffs' claims are barred because Plaintiffs do not own the
copyright andlor electronic rights for the works.

U.

Some or all of the Plaintiffs' claims are barred for failure to comply with renewal,
notice, and registration requirements, andlor other formalities.

V.

Some of the copyrights upon which Plaintiffs rely are in the public domain.

W.

Some or all of Plaintiffs' claims are barred because some or all of Plaintiffs have
engaged in copyright misuse and/or have unclean hands.

X.

At all times relevant to this suit, Defendants acted in good faith and had
reasonable grounds for believing their actions were not in violation of any law.

Defendants respectfully reserve the right to amend their answer to add additional or other
defenses or to delete or withdraw defenses, or to add counterclaims as may become necessary
after a reasonable opportunity for appropriate discovery.

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Filed 12/02/11 Page 25 of 25

WHEREFORE, Defendants request the following relief:

(a)

That Plaintiffs be denied all relief sought in the FAC;

(b)

That the claims asserted in the FAC be dismissed with prejudice;

(c)

That Defendants be awarded their attorneys' fees and costs pursuant to, inter alia,
17 U.S.c. § 505 and Fed. R. Civ. P. 54(d); and

(d)

Any such other and further relief as the

Dated: December 2, 2011
New York, New York

31 West 52nd Street, 14th Floor
New York, NY 10019
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Joseph M. Beck (admitted pro hac vice)
W. Andrew Pequignot (admitted pro hac vice)
Allison Scott Roach (admitted pro hac vice)
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants

25
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Case 1:11-cv-06351-HB Document 25

Filed 12/09/11 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORI(

THE AUTHORS GUlLO, INC" et 81.,

Case No. ll-cv-6351(HB)

Plaintiffs,

v.

ORAL ARGUMENT
REQUESTED

HATHlTRUST, ej a!.,

Defendants.

MEMORANDUM IN SUPPORT OF THE MOTION OF
THE NATIONAL FEDERATION OF THE BLIND AND OTHERS
TO INTERVENE AS DEFENDANTS

THE LAW OFFICE OF
ROBERT J. 13HRNSTEIN
Robert J. Bernstein (RB 4230)

380 Lexington Avenue, 17'h Floor
New York, NY 10168
Telephone: [phone]
Facsimile: [phone]
OF COUNSEL:

Daniel F. Goldstein
Lama Ginsberg Abelson
BROWN, OOLDSTEDI & LEVY, r.LP

120 E. Baltimore Street
Suite 1700
Baltimore, Maryland 21202
Telephone: 410-962-·1030
Facsimile: 410-385-0869
[e-mail]
labelson@bl'owngold.c0111

Peter Jaszi
5402 SU1'l'ey Street
Chevy Chase. Maryland 20815
Telephone: [phone]
Facsimile: 301-656-7483
[e-mail]

Counsel/or National Fedemtloll afthe Blind,
(,em'gina Kleege, Blair Seldlllz and Courtney Wheeler

A-124
Case 1:11-cv-06351-HB Document 25

Filed 12/09/11 Page 9 of 26

Blind students with research papers based on library research are generally thrown back to llsing
human readers, a resource that is limited both in supply and utility. No matter how timely blind
students submit their requests upon receiving their syllabi, they typically wait sevcral wceks of a
ten- 01' twelve-week term to receive an accessible copy of required reading.
To understand how time-intensive the digitization process can be, consider that the
National Library Service ("NLS") of the Library of Congress has the capacity to digitize
appl'Oximately two thousand hooks each year for use by hlind Americans. 9 Because the NLS
seeks to reach the widest popular audience, it prioritizes bestsellers, ruther than academic works,
and therefore reaches a very different audience than the HathiTrust. But, even ifthe NLS
fOCtlSed on academic works, at its current pace it would take more than 3,500 years to create the
digital collection maintained by the HathiTrust.
With access to the HathiTrust, blind university students and faculty can, for the first time,
access all the same books available to theii' sighted peers, at the same time as their peers, and at a
comdtletuble saving::! to the ulliven:ities in titne aud expense.

The individual Proposed Intervenors are all blind and are either students or facuIty at the
defendant universities. They are members of disciplines in which they regularly must conduct
library research, using either books or professional jomnals. If the COutt impounds the
HathiTrust collection and prevents future digitization, they will be unable to access these
materials to the same extent.
Blair Seidlitz is in his jl.Uliol' yenr as an engineering major at the University of Wisconsin,
Madison. 'o He intends to apply to Ph.D. programs when he graduates. When he wishes to

Maurer Decl. ~ 12.
w Declaration of Blair Seidlitz ("Seidlitz Dec!.") ~ 4 (attached as Ex. B).

9

4

A-125
Case 1:11-cv-06351-HB Document 25

Filed 12/09/11 Page 10 of 26

borrow books ti'om the Wisconsin library, becanse he is blind, he mnst photocopy the books and
scan each page with his Kurzweil™ scanner, which is a device that scans print text and converts
it to an accessible format. J J Becanse of the incredibly time-consuming nature of this process,
Mr. Seidlitz avoids borrowing books from the library. J2 Jfhe had access to digital copies of the
library's collection, he would be able to access books that would em1ch his lcaming
experience. J3 CUI'J'ently, he purchases accessible copies of required texts, but does lIot use
supplemental materials that are only in the library, and which are available to his sighted
classmates. I4
COl1l'tney Wheeler is ajunior Psychology major at the University of Wisconsin, Bau
Claire and will be transferring to the University of Wisconsin, Stout, for the Spring 2012
semester. l' Ms. Wheeler reads using screen access software. I6 Because digital copies of library
works are unavailable, Ms. Wheeler brings her husband or a friend as a reader when she wishes
to borrow library books. I7 Because of this, Ms. Wheeler do"" not take elecllves that require
research papers and has petitioned the University of Wisconsin for exemptions from classes that
reqtlire conducting library research and classes that require textbooks OJ' other print materials that
"'e not available in an accessible format. IS

Seidlitz Dec!. ~ 5.
Seidlitz Dec!. ~ 6.
13 Seidlitz Dec!. ~ 8.
14 Seidlitz Decl. ~ 7.
IS Dcclaration of COUltney Whcc1cr ("Wheoler Dec!.") ~ 4 (attached as Ex. C).
16 Wheeler Dec!. ~ 5.
17 Wheeler Decl. ~ 7.
18 Wheeler Decl. ~ 8.
11

1,

5

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Filed 12/09/11 Page 11 of 26

GeOl'gina Kleege is a LeetUl'er in Creative Writing and Disability Studies and a member
of the English Department at the University of California, Berkeley. 19 Previously, she was an

Adjunct Protessol' at the Ohio State University from 1991-2002. 20 To access textual materials,
Ms. Kleege uses a screen readel'." Thus, when Ms. Kleege wishes to read prillt books from the
Berkeley library, she must scan each page and lUn it through optical character recognition
software. As a result of this time-consuming process, she rarely borrows print materials from the
library.22 Currently, Ms. Kleege devotes much of her time seamhing for or making accessible
copies of print materials, time that hcl' sightcd colleagues arc able to dcvote to their academic
pursuits.>3
As the experiences of the individual intel'venOl'S uernOllSlrate; access to a comprehensive

digital library collection would allow blind students and faculty to participate fully in university
life. The HathiTrust has created such a digital library and an injunction prohibiting use of that
resource and future digitizatioll would have a se!'ious negative impact all the blind, depriving
them oftbis opportunity.
ARGUMENT
1.

Thel'roposed Intervenors may intel'Yene as of l'ight.

The Proposed Intervenors may intervene as of right, under Rule 24(a) ifthey meet four
criteria: They must "(I) timely file an application, (2) show an interest in the action, (3)
demonstrate that the interest may be impaired by the disposition of the action, and (4) show that

Declaration of Georgina Kleege ("IUeege Decl.") 114 (attached as Ex. D).
Kleege Decl. 1[4.
21 Kleege Decl. 11 4.
22 Kleege Decl.lI S.
23 Kleege Dec1.1[7.
19

20

6

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Filed 12/12/11 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT 01" NEW YORK

THE AUTHORS GUILD, INC" et aI.,
Plaintiffs,
v.

Case No. lI-cv-6351(HB)
NOTICE OF MOTION
TO INTERVENE

HATHITRUST, et aI.,

ORAL ARGUMENT
REQUESTED

Defendan/s.

PLEASE TAKE NOTICE that upon the annexed Declarations of Daniel F, Goldstein,
sworn to December 6, 20 11; Dr. Marc Mauer, SlVorn to December 6, 2011, Georgina Kleege,
sworn to December 5, 2011, mail' Seidlitz, SlVorn to Decembel" 6,20 II, and COUliney Wheeler,
sworn to December 6, 20 1l; the accompanying Memorandum of Law in Support of the Motion
of the National Federation of the Blind, Georgina Kleege, Blair Seidlitz and Courtney Wheeler
(collectively, "Proposed Intervenors) to Intervene as Defendants in this action; and all prior
pleadings herein, Proposed Intervenors will move this Court, before the Honorable Harold Baer,
United States District Comt Judge, in Comtroom 23R, Daniel Patrick Moynihan Ilnited States
COUl'thouse, 500 Pearl Street, New York, NY j 00 j 7-1312, on the date and time to be set by the
Court, for an order pursuant to Rule 21 of the Federal Rules of Civil Procedure permitting
Proposed Intervenors to intervene as defendants in this action.
PLEASE TAKE FURTHER NOTICE that answering papers, if any, shall be served
upon the undersigned 110 later than December 23, 2011.

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Dated: NewYork,NewYork
December 9, 2011
Respectfully submitted,
THE LAW OFFICE OF
ROBERT J. BERNSTEIN
By:

/s/
Robert J. Bernstein (RB 4230)
380 Lexington Avenue, 17th Floor
New York, NY 10168
Telephone: [phone]
Facsimile: [phone]

Counsel for Proposed intel1'enors
The Nalional Federalion oflhe Blind,

Georgina K/eege, Blair Seidlitz and
Courtney fVheefel'

OF COUNSEL:
Daniel F. Goldstein
Laura Ginsberg Abelson
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore Street
Suite 1700
Baltimore, Maryland 21202
Telephone: [phone]
Facsimile: 410-385-0869
dfg@bl'Owngold.com
[e-mail]

and
PETERJASZI
5402 Surrey Street
Chevy Chase, Maryland 20815
Telephone: [phone]
Facsimile: 301-656-7483

[e-mail]
TO:
Edward H. Roscnthal
Jeremy S. Goldman
FRANKfURT KURNlT KLEIN & SELZ, P.C.
488 Madison Avenue
New York, NY 10022

Attorneysfor Plaintiffs
2

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and

Joseph Peterson
KILPATRICK TOWNSEND & STOCKTON LLP
31 W. 52"d Street, 14th Floor
New York, NY 10019
Joseph M. Beck
W. Andrew Pequignot
Allison Scott Roach
KILPATRICK TOWNSEND & STOCKTON LLP
Suite 1800
I 100 Peachtree Street
Atlanta, GA 30309-4528
Allome),s for Defendants
CERTIFICATE OF SERVICE
T HERERV CERTIFY, under penalty of petjury, that the foregoing Notice of Motion to

Intcrvcnc of National Fcderation of the Blind, Georgina Kleege, l3Iair Seidlitz and Courtney
Wheeler; the accompanying Declarations of Daniel F. Goldstein, Dr. Marc Mauer, Georgina
Keege, Blair Seidlitz and Courtney \Vheeler in support thereof; and the accompanying Memorandum in

Support of the Motion orthe National Federation oftho Blind and Others to Intervene as
Defendants, are being filed electronically today, and that, upon such filing, pursuant to this
Court's Local Rules and ECF proccdures, thcsc documents shall be served electronically on the
above-referenced attorneys for plaintiffs and for defendants at theil' respective email addresses
registered with the Court's ECF system.

lsi
Robert J. Bernstein

3

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Exhibit A

A-131
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IN THE UNITED STATES DISTRICT COURT
FOR THE! SOUTHERN DISTRICT OF NfiW VORI(

THE AUTHORS GUILD, INC., et aI.,
Plaintiffs,

Case No. 11·cv·G351(HB)

v.
HATHITRUST, at al.,
Defendant,.

DECLARATION OF OR. MARC MAURER
I, Marc Maurer, do hereby declare that:
1.
,2.

I am over eighteen years of age and am competent to mal(e this Declaration.
My business address Is 200 East Wells Stl'eet at Jernigan Place"Baltlmore,

Maryland 21230,
3.

I am legally blind.

4.

I am the President of the National Federation of the Blind. a position I have held

since 1986.
5.

I am also an attorney, [Icensed to practice In Maryland, Indiana. Ohio, Iowa and

am a member of the bar of the Supreme Court of the United states.
6..

The National Federation of the Blind Is the oldest and largest membership

organization of blind pooplo In tho United States, with more than 50,000 members. Through

our affiliates In each of the fifty states, the District of Columbia, and'Puerto Rico. and our 700
local chapters, we seek to advance the rights of blind people by helping both the blind and the

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Filed 12/12/11 Page 3 of 6

sighted to understand that blindness, In and of Itself, need not be a tl'~gedy, The real problem
of blindness Is not loss of eyesight, but misunderstandings and misconceptions about It that are
prevllient in society, With propel' training and opportunity, blindness can be reguced to the
level of a mere physical nuisance,
7,

Unlike the NFB, most other organi,atlons that advocat~ on behalf of people with

print disabilities are not membership organizations.

or those groups that are membership

organizations, the NFB Is one oftha few that choOSQS to use litigation as an advocacy tool or
has the resources to do so,
8,

A person with a print disability Is someone who cannot effectively read print

because.of a visual, physical, perceptual, developmental, cognitive, or learning disability.
9.

Because of Its unique position among peer organizations, tho NfB has tal~en the

lead In promoting the creation of accessible digital tec~nology and Information, NFB has 10llg
espoused creating the sal)1e access to Information that other Americans enjoy on functionally
equal terms, For example, In the 1970's, NFB financed Ray Kurzwell's development of a reading
machine for the bllnd-a machine that converted printed text Into digital text that could be
read aloud by a synthetic voice, In 1998, NFB memberGeorge Kerscher developed Talldng
Books, the first commercially available digital bool<s for the blind,
10,

Equal nccess to all of the same Information is technologically within reach,

Because digital Information Is simply a series of zeros and ones, It Is not Inher~ntly visual. Ifthe
creators of digital Information are conscious of accessibility, It beCOmes 110 more difficult to.
create digital information that can be manifest audibly 01' tactllely than to create Information
that Is only visual.
2

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11.

Filed 12/12/11 Page 4 of 6

Yo access print material, I use all of the tools available to me and other blind

people, Although I read conventional braille, I also use screen access software, which transmits
textual Information on a computer screen Into an audio output or a refreshable braille display
pad. When digital text Is coded jJl'operlywlth metadata, that provides organizational
Information about the text, my screen reader will also read that Information, which allows me
more complete Information and a way to navigate within a document.
12.

There are a very limited number of print works that are available to be borrowed

by blind Americans either In br"llIe or In a digital format that can be accessed by a screen
reader. The primary source of reading material for most blind Americans Is the Natlonall.lbrary
Service for the BI.lnd and PhYSically H<1ndlcapped of the Library of Congress. While this service
has done, an outstanding Job of providing books to tho blind within budgetary constraints, It
'"

only has approximately 52,000 Circulating titles In Its collection and can only create
approximately 2,OOO'new titles each year, Book$hare~, another authorized entity under \he
Chafee Amendment, has a collection oftens ofthousands of titles, according to Its website:
www.bool(share.org.
13.

The lad( of print Information available to blind Americans has devastating

effects. Fewer than fifty percent of blind Americans graduate from high school, Those who do
graduate and matriculate at colleges and universities are blocked, a~ a practical matter, from
taking many courses of their choosing.
14.

The HathiTrust Dlgltall.lbrary stands to change the landscape of access to

Information and education fOI' blind Am.erlcans, The more than 9,000,000 million titles In that
collection are a far CrY from the tens of thousands Qftltles available from the National Library
3

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Service or Bool<share®. To serve the most people, and given the time cOI\slralnts and expense'
of creating accessible caples of print materials, both of those entitles must choose titles tliat
have wide popular appeal. Consequently, those collections contain few academic books or
journals. By contrast, the HathlTrust's collection Includes academic works, which are critical
educ~tlonal

15.

tools for blind college and university students and faculty.
Recognl~lng the

transformatlve effect of slich a large digital collection, the NFB

, collaborated with Google and the IIbrarlos oftha University Defendants, among others, over
the last several years to. ensure that the HathlTrust Digital Library will be accessible and made
available to blind Amel'lcans,
16.

In December 2004, the NFB learned of the Google scannlnB Project and

contacted Google to Inquire whether the scans would be ere. ted In sLl~h a way that they would
Include the metadata necessary to. make them accessible to the blind. In January 2005, Goosle
responded that It did not Intend to Include the coding necessary to. make the scans accessible.
17.

Throughout 2005 and 2006, the NFB lobbied Googla to. change this decision and

include the necessary metadata. In 2006. the NFB, together with Peter Jaszl, met with
representatives from the University of California, the University of Michigan, and the University
ofWlsconslo, to recruit their support In convln,lng Google to commit to producing accessible
scans. This effort was ultimately sllccessful, and as I discussed "bove, the Google books scans
that comprise the HathlTrust are accessible to the blind,
.1.8.

In October 2003, tho University of Michigan held a demonstration forthe NFB of

the procedure and software It had developed to make the H"thlTrust collection's digital
Information accessible to the print disabled.

4

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.~

19.

In September 2009, I testified before the Committee on the Judiciary of the

United States House of Representatives about the imparlance of the Google books/HathiTrust
collection for the education of the blind.
20.

Also In 2009, the NFB organized the Reading Rights Coalition, which Is composed

of 32 groups representing Indlvldu~ls with print disabilities (IncludIng neurological and physical
conditions as well as learning disabilities) In response to the Authors Guild's attempt to
convince Amazon to disable the text to speech function on tha Kindle, another digital book
technology. Through this effort, we successfully persuaded Amazon to maintain Its texHospeech function.
I declare under penalty of perJury thai the foregoing Is true and correct.

Executed on:

.!£:j¢LY___

5

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

THE AUTHORS GUILD, INC., et a!.,
P laintiffi,

Case No. ll-cv-6351(HB)

v.
HATHITRUST, et al.,

Defendants.
DEFENDANT INTERVENORS'
JOINT ANSWER AND DEFENSES
Defendant Intcrvenors National Fedcration ofthc Blind, Georgina Kleege, Blair Seidlitz,
and Courtney Wheeler herehy state thc following for thcir JOINT ANSWER AND DEFENSES
to the I'irst Amended Complaint filed hy the Plaintiffs in the ahove-captioned action
("Plaintiffs"). Det,mdants respond to the paragraphs of the Pirst Amended Complaint ("FAC") in
correspondingly numbered paragraphs. Defendant Intervenors deny each allegation in the FAC
unless expressly admitted.
1.

Defendants admit that Plaintiffs, in the FAC, seek prospective injunctive and

declaratory relief but deny that Plaintiffs are entitled to such relief. Defendants admit tllat "the
Regents of the Urriversity of MichiganlUniversity Library, Ann Arbor Campus"; "The Regents
of the University of Califorrria on behalf of its California Digital Library"; "the Board of Regents
of the University of Wisconsin System, d/b/a the University of Wisconsin-Madison, General
Library System"; and Cornell University entered into agreements with Google Inc. ("Go ogle")
regarding the digitization of works in their libraries' collections, and that The Board oITruslees
of the Urriversity ofIllinois, on behalf ofilie Committee on Institutional Cooperation ("CIC")

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and its member universities (the "CIC Universities"), entered into an agreement with Google
regarding the digitization of works in the CIC Universities' library collections. Defendant
Intervenors further admit that "HathiTrust" is the name of a service of the University of
Michigan in which the Universities and other institutions participate under agreements with the
University of Michigan. Defendant Intervenors admit that they and Defendants have engaged in
uses of and activities with respect to the works, which uses are permitted under the United States
Copyright Act (the "Copyright Act"). Defendant Intervenors lack knowledge or information
sufficient to form a belief about whether Plaintiffs hold a copyright in any work used by
Defendant Intervenors and thus deny such allegations. Defendant Intervenors deny the remaining
allegations in Paragraph 1 of the FAC.
2.

Defendant Intervenors admit that pursuant to Google's various agreements with

the Regents of the University ofMichiganlUniversity Library, Ann Arbor Campus; The Regents
of the University of California on behalf of its California Digital Library; the Board of Regents
of the University of Wisconsin System, dlb/a the University of Wisconsin-Madison, General
Library System; Cornell University; and The Board of Trustees of the University of Illinois, on
behalf of the CIC and the CIC Universities, Google has provided digital copies of books from a
University's library's collections either to that University or, at the University's request, to the
University of Michigan Library in Ann Arbor (the "MLibrary"), and that the Universities store
these digital copies in a repository called the HathiTrust Digital Library ("HDL"), which contains
at least 9.7 million volumes. Defendant Intervenors also admit that the Universities participate in
the HathiTrust Service along with more than fifty other institutions. Defendants lack knowledge
01'

information sufficient to form a belief about whether seventy-three percent (73%) of these

2

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volumcs arc protected by copyright and thus deny such allegations. Defendants deny the
remaining allegations in Paragraph 2 ofthc FAC.
3.

Defendant Intervenors admit that UM and UC have announced their participation

in the Orphan Works Project ("OWl'''), an initiative to, inter alia. identify "orphan works"-incopyright works for which the copyright holder cannot be found-and eventually to make lawful
uses of these works. Defendant Intervenors also admit that Cornell and UW have amlounccd
plans to participate in the OWP and that IU has not announced plans to participate in the OWl'.
Defendants deny the remaining allegations in Paragraph 3 of the F AC.
4.

Defendant Intervenors admit that the Universities have asselied that their

activities are beneficial to society and permissible under a variety of sections of the Copyright
Act, including as fair use, which received statutory recognition in Section 107 oflhe Copyright
Act. Defendant Intervenors deny the remaining allegations in Paragraph 4 of the FA C.
5.

Defendant Intervenors admit that, in a separate case, Google and The Authors

Guild, Inc. (among other parties) filed a motion for approval of a proposed setllemtlnt agreement
that was denied by the court. The referenced proposed settlement agreement and court order
denying approval speak for themselves. Defendants deny the remaining allegations in Paragraph
5 ofthe FAC.
6.

Defendant Intervenors deny the allegations in Paragraph 6 of the F AC.

7.

Defendant Intervenors deny the allegations in Paragraph 7 of the F AC.

8.

Defendant Intervenors admit that the FAC seeks injunctive relief and purports to

statc claims for copyright infringement under the United States Copyright Act, 17 U.S .C. 101 et
~cq.

and secks declaratory rclicfpnrsuant to 28 U.S.C . §§ 2201 and 2202, but Defendant

3

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Intervenors deny that any such infringement has occurred, deny that Plaintiffs are entitled to the
relief sought, and otherwise deny the remaining allegations in Paragraph 8 of the FAC.
9.

Paragraph 9 of the FAC is a legal assertion that docs not require an Answer.

10.

Defendant Intervenors lack knowledge or information sufficient to form a belief

about the truth ofthe allegations in Paragraph 10 of the FAC and thus deny such allegations.
11.

Paragraph 11 ofthe FAC is a legal assertion that does not require an Answer

12.

Upon information and beliet; Defendant Intervenors admit that The Authors

Guild, Inc. is a corporation with a place ofbusiness at 31 East 32nd Street, New York, New York,
10016. Defendant Intervenors lack knowledge or information sufficient to form a belief about the
truth of the remaining allegations in Paragraph 12 oflhe FAC and thus deny such allegations.
13.

Defendant Intervenors lack knowledge or information sufficient to form a belief

about the truth of the allegations in Paragraph 13 of the FAC and thus deny such allegations.
14.

Defendant Intervenors lack knowledge or information sufficient to form a belief

about the truth of the allegations in Paragraph 14 of the FAC and thus deny such allegations.
15.

Defendant Intervenors lack knowledge or ioformation sufficient to form a belief

about the truth of the allegations in Paragraph 15 of the FAC and thus deny such allegations.
16.

Defendant Intervenors lack knowledge or information sufficient to form a belief

about the truth of the allegations in Paragraph 16 of the FAC and thus deny such allegations.
17.

Defendant Intervenors lack knowledge or information sufficient to form a belief

about the truth oflhe allegations in Paragraph 17 of the FAC and thus deny such allegations.
18.

Defendant Intervenors lack Imowledge or information sufficient to form a belief

about the truth of the allegations io Paragraph 18 ofthe FAC and thus deny such allegations.

4

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19.

Filed 04/12/12 Page 5 of 21

Defendant Intervenors lack knowledge or information sufficient to form a belief

about the truth of the allegations in Paragraph 19 of the FAC and thus deny such allegations.
20.

Defendant Intervenors lack knowledge or information sufficient to form a belief

about the truth of the allegations in Paragraph 20 of the FAC and thus deny such allegations.
21.

Detendant Intervenors lack knowledge or information sufficient to form a belief

about the truth of the allegations in Paragraph 21 of the FAC and thus deny such allegations.
22.

Defendant Intervenors admit that the book identified in Exhibit A to the FAC that

is referred to is included in the HDL, but Defendant Intervenors otherwise deny the allegation
that such book was "unlawfully r~produced. digitized and distributed" by Defendants. Defendant
Intervenors lack knowledge or information sufficient to form a belief about the truth of the
remaining allegations in Paragraph 22 of the F AC and thus deny such allegations.
23.

Defendants admit that the books identified in Exhibit A to the F AC that are

referred to in Paragraph 23 of the FAC are included in the HDL, but Defendant Intervenors
otherwise deny the allegation that such books were "unlawfully reproduced, digitized and
distributed" by Defendants. Defendant Intervenors lack lmowledge or information sufficient to
form a belief about the truth of the remaining allegations in Paragraph 23 of the F AC and thus
deny such allegations.
24.

Defendant Intervenors admit that the book identified in Exhibit A to the FAC that

is referred to in Paragraph 24 of the FAC is included in the HDL, but Defendant Intervenors
otherwise deny the allegation that such book was "unlawfully reproduced, digitized and
distributed" by Defendants. Defendant Intervenors lack knowledge or information sufficient to
form a belief about the truth ofthe remaining allegations in Paragraph 24 ofthe FAC and thus
deny such allegations.

5

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25.

Filed 04/12/12 Page 6 of 21

Defendant Intervenors admit that the book identified in Exhibit A to the FAC that

is referred to in Paragraph 25 ofthe FAC is in the HDL, but Defendant Intervenors otherwise
deny the allegation that such book was "unlawfully reproduced, digitized and distributed" by
Defendants. Defendant Intervenors lack knowledge or information sufficient to form a belief
about the truth of the remaining allegations in Paragraph 25 of the FAC and thus deny such
allegations.
26.

Defendants admit that the books identified in Exhibit A to the F AC that are

referred to in Paragraph 26 ofthe FAC are included in the HDL, but Defendant h,tervenors
otherwise deny the allegation that such books were "unlawfully reproduced, digitized and
distributed" by Defendants. DefendanL Intervenors lack knowledge or information sufficient to
form a belief abouL the truth of the remaining allegations in Paragraph 26 onhe FAC and thus
deny such allegations.
27.

Defendant Intervenors admit that the books identified in Exhibit A to Lhe FAC

that are referred to in Paragraph 27 of the FAC are in the HDL, but Defendant Intervenors
otherwise deny the allegation that such books were "unlawfully reproduced, digitized and
distributed" by Defendants. Defendant Intervenors lack knowledge or information sufficient to
form a belief about the truth of the remaining allegations in Paragraph 27 of the FAC and thus
deny such allegations.
28.

Defendant Intervenors admit that the books identified in Exhibit A to the FAC

that are referred to in Paragraph 28 of the FAC were digitized and included in the HDL, and
Defendants otherwise deny the allegation that such books were "unlawfully reproduced, digitized
and distributed" by Defendants. Defendant Intervenors lack knowledge or information sufficient

6

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to form a belief about the truth of the remaining allegations in Paragraph 28 of the FAC and thus
deny such allegations.
29.

Defendant Intervenors admit that the books identified in Exhibit A to the FAC

that are referred to in Paragraph 29 of the FAC are included in the J-lIJL, but Defendant
Intervenors otherwise deny the allegation that such books were "unlawfully reproduced, digitized
and distl'ibuted" by Detendants. Detendants lack knowledge or information sufficient to torm a
helief ahout the truth ofthe remaining a11egatio11s in Paragraph 29 ofthe rAe and thus deny
such allegations.
30.

Defendant Intervenors admit that the book identified in Exhibit A to the FAC that

is referred to in Paragraph 30 of lie FAC is included in lie HDL, but Defendant Intervenors
otherwise deny the allegation that such book was "unlawfully reproduced, digitized and
distributed" by Defendants. Defendant Intervenors lacle knowledge or information sufficient to
form a belief about the truth of the remaining allegations in Paragraph 30 of the FAC and thus
deny such allegations.
31.

Defendant Intervenors admit that the book identified in Exhibit A to the FAC that

is referred to in Paragraph 31 of the FAC is included in the HDL, but Defendant Intervenors
otherwise deny the allegation that such book was "unlawfully reproduced, digitized and
distributed" by Defendants. Defendant Intervenors laele knowledge or information sufficient to
form a belief about the truth of the remaining allegations in Paragraph 31 of the Fi\C and thus
deny such allegations.
32.

Defendant Intervenors admit that the book identified in Exhibit i\ to the F i\C that

is referred to in Paragraph 32 ofthe FAC is included in the HDL, but Defendant Intervenors
otherwise deny the allegation that such book was "unlawfully reproduced, digitized and

7

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distributed" by Defendants. Defendant Intervenors lack knowledge or information sufficient to
form a belief about the truth ofthe remaining allegations in Paragraph 32 ofthe FAC and thus
deny such allegations.
33.

Defendant Intervenors admit that the books identified in Exhibit A to the FAC

tbat are refened to in Paragraph 33 of the FAC are included in the HDL, but Defendant
Intervenors otherwise deny the allegation that such books were "unlawfully reproduced, digitized
and distributed" by Defendants. Defendant Intervenors lack knowledge or information sufficient
to form a belief about the truth of the remaining allegations in Paragraph 33 of the F AC and thus
deny such allegations.
34.

Defendant Intervenors admit that UM is a state university comprising three

campuses with a principal place of business in Ann Arbor, Michigan. Defendants also admit that
UM is governed by its Board of Regents. Defendants further admit that UM owns, operates, and
controls MLibrary and that, upon information and belief, MLibrary is one of the largest
university library systems in the United States, holding more than 8.5 million volumes and with
more than 3 million patron visits per year to its facilities and its website. Defendants also admit
that on or about December 14, 2004, "the Regents of the University of MichiganiUniversity
Library, Ann Arbor Campus" entered into a Cooperative Agreement with Ooogle to digitize
works from the MLibrary collection (the 'UM-Ooogle Cooperative Agreement"). Defendant
Intervcnors further admit that UM is a co-founder, host, and primary administrator of the
HathiTrust Service and is the largest contributor to the HDL, which contains the collection of
digital works with respect to whieh the HathiTrust Service operates. Defendant Intervenors deny
the remaining allegations in Paragraph 34 of the FAC.

8

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35.

Filed 04/12/12 Page 9 of 21

Defendant Intervenors admit that UC is a public trust comprising ten campuses

with a principal place of business in Oakland, California. Defendant Intervenors also admit that

lie is governed by its Board of Regents. Defendant Intervenors further admit that UC owns,
operates, and controls the UC library system, that the UC library system consists of more than
100 libraries, and that, upon information and belief, the UC library system collectively is the
largest research/academic library in the world. Defendant Intervenors also admit that on 01' about
August 3, 2006, "The Regents of the University of California on behalf of its California Digital
Library" entered into a Cooperative Agreement with Google to digitize works from UC's
libraries (the "UC-Google Cooperative Agreement"). Defendant Intervenors further admit that
UC is a co-founder of the HathiTrust Service and is the second largest contributor to the HDL.
Defendant Intervenors also admit that UC announced on August 24, 2011 its intention to join the
OWP. Defendant Intervenors deny the remaining allegations in Paragraph 35 of the FAC.
36.

Defendant Intervenors admit that UW is a state university system comprising

twenty-six campuses with a principal place of business in Madison, Wisconsin. Defendant
Intervenors also admit that UW is governed by its Board of Regents. Defendant Intervenors
further admit that UW owns, operates, and controls the UW library system, holding more than 8
million volumes. Defendant Intervenors also admit that on or about October 12, 2006, the "the
Board of Regents of the University of Wisconsin System, d/b/a the University of WiseonsinMadison, General Library System" entered into a Cooperative Agreement with Google to
digitize works from UW's libraries (the "UW-Google Cooperative Agreement"). Defendant
Intervenors furLher admit that UW is a co-founder of the HathiTrust Service and is the third
largest contrihutor to the HDL. Defendant Intervenors also admit that UW's intention to

9

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participate in the OWP became public on June 23,2011. Defendant Intervenors deny the
remaining allegations in Paragraph 36 ofthe FAC.
37.

Defendant Intervenors admit that "the trustees oflndiana University" governs IU,

which is a body politic of the State of Indiana, a State institution of higher education comprising
eight campuses with a principal place of business in Bloomington, Indiana. Defendant
Intervenors further admit that IU owns, operates, and controls the IU library system, holding
more than 7.M million books in over 900 languages. Defendant Intervenors also admit that IUs
13loomington campus is a member ofthe CIC, a consortium of Big Ten universities plus the
University of Chicago. Defend8l1t brtervenors further admit that on

01'

about June 6, 2007, The

Board of Trustees of the University of Illinois, on behalf ofthe CIC and the elc lJniversities,
entered into a Cooperative Agreement with Google to digitize works from

crc Universities'

libraries (the "CIC-Google Cooperative Agreement"). Defendant Intervenors further adm it that
!U's Bloomington campus is the seventh largest contributor to the HDL. Defendant Intervenors
admit that a fully uperational, synchronized, and live "mirror site" of the HDL is located on IUs
Indianapolis campus. Defendant Intervenors deny the remaining allegations in Paragraph 37 of
theFAC.
38.

Defendant Intervenors admit that Cornell is a corporation and private laml-grant

university with its principal place of business in Ithaca, New York. Defendant Intervenors also
admit that Cornell owns, operates, and controls the Cornell library, holding more than 8 million
volumes. Defendant Intervenors further admit that on or about August 6, 2007, Cornell entered
into a Cooperative Agreement with Google to digitize works from the Cornell library (the
"Cornell-Google Cooperative Agreement"). Defendant Intervenors also admit i1rat Cornell is the
fourth largest contributor to the HDL. Defendant Intervenors further admit that Cornell

10

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announced on August 24,2011 its intention to join the OWP. Defendant Intervenors deny the
remaining allegations in Paragraph 38 of the FAC.
39.

Defendant Intervenors admit that "HathiTrust" is the name of a service through

which more than fifty institutions, which include universities, libraries, educational institutions,
and consortia, arc collaborating with UM to create a reliable and increasingly comprehensive
digital repository of books. Defendant Intcrvcnors also admit that UM's princ.ipal place of
business for purposes of providing the HathiTrust Serviec is in Ann Arbor, Michigan. Defendant
lntervenors further admit that as of October 5, 20 11, the BDf. contained 9,709,348 volumes,
amounting to 435 terabytes of data. Defendant Intervenors deny the remaining allegations in
Paragraph 39 of the FAC,
40,

Defendant Intervenors admit that libraries and archives provide a tremendous

societal value in preserving and securing works of mi, literature, and science, Defendant
Intervenors also admit that Section l08 of the Copyright Act is one of many limitations on
copyright holders' rights. Defendant Intervenors deny the remaining allegations in Paragraph 40
of the FAC.
41.

Defendant Intervenors admit that Section 108(b) permits a library to make three

copies of an unpublished work for preservation and security purposes (among other purposes),
Defendant Intervenors also admit that Section 1 8(c) permits a library to make three copies of a
published work. Defendant Intervenors deny the remaining allegations in Paragraph 41 of the
FAC.
42.

Defendant Intervenors respond to Paragraph 42 by stating that Section 108 of the

Copyright Act, as it has existed at various times, speaks for itself. Defendant Intervenors further

11

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Case 1:11-cv-06351-HB Document 58

Filed 04/12/12 Page 12 of 21

respond that Plaintiffs' description of Section 108 is incomplete and therefore mischaracterizes
the statute. Defendant Intervenors thus deny the allegations in Paragraph 42 of the FAC.
43.

Defendant Intervenors admit that Paragraph 43 appears to be an accurate quote of

selected text (with Plaintiffs' emphasis) from Senate Report No. 105-190 (1998), whieh speaks
for itselt; and theretore is an incomplete and inaccurate representation oflhe legislative bistory.
Defendant Intervenors deny the remaining allegations in Paragraph 43 of lhe FAC.
44.

Defendant Intervenors respond to Paragraph 44 by stating that Section 108 oflhe

Copyright Act, as it has existed at various times, speaks for itself. Defendant intervenors further
respond that Plaintiffs' description of Section 108 is incomplete and theretore mischaractetizes
the statute. Defendant Intervenors thus deny the allegations in Paragraph 44 of the F AC.
45.

Defendant Intervenors respond to Paragraph 45 by stating that Section 108 ofthe

Copyright Act, as it has existed at various times, speaks for itself. Defendant Intervenors further
respond tbat Plaintiffs misquote Section 108 and that Plaintiffs' description or Section 108 is
incomplete and therefore mischaracterizes the statute. Defendant Intervenors thus deny the
allegations in Paragraph 45 oftlte FAC.
46.

Defendant Intervenors admit the allegations in Paragraph 46 of the FAC.

47.

Defendant Intervenors deny the allegations in Paragraph 47 of the FAC.

48.

Defendant Intervenors deny the allegations in Paragraph 48 of the FAC.

49.

Defendant Intervenors lack knowledge or information sufficient to form a belief

about the truth of the allegations in Paragraph 49 regarding an announcement made by Google;
regarding whether, when, and with whom Google has formed partnerships; and regarding
whether Google and "its partners" have digitized more than 12 million hooks and thus deny such
allegations.

12

A-148
Case 1:11-cv-06351-HB Document 58

50.

Filed 04/12/12 Page 13 of 21

Defendant Intervenors admit that pursuant to the U:\1-Google Cooperative

Agreement, UM cooperates with Google to identify books from UM's collection to be digitized;
that pursuant to the UC-Google Cooperative Agreement, DC cooperates with Google to identify
books from UC's collection to be digitized; that pursuant to the UW-Google Cooperative
Agreement, UW cooperates with Google to identify books from UW' s collection to be digitized;
that pursuant to the CIC-Google Cooperative Agreement, each ofthe CIC Universities, including
IU, cooperates with Google to identify books fi'om their individual collections to be digitized;
and that pursuant to the Cornell-Google Cooperative Agreement, Cornell cooperates with noogie
to identify books from Cornell's collection to be digitized. Defendants admit that the books
selected for digitization pursuant to these agreements are not limited to works in the public
domain, unpublished works, or deteriorating published works that calUlOt be replaced, and
include in-print books that are commercially available and books that are protected by copyright.
Defendant Intervenors further admit that pursuant to the terms of these various agreements, the
works selected for digitization are delivered to a facility that is located either on or offthe
University's campus and that is occupied by Google personnel and scanning equipment.
Defendant Intervenors deny the remaining allegations in Paragraph 50 of the FAC.
51.

Defendant Intervenors admit that Google has digitized books owned by the

Universities libraries. Defendant Intervenors lack knowledge or information sufficient to form a
belief about the truth ofthe allegations regarding "Google Books" and Google's actions with
respect to "Google Books" and thus deny the remaining allegations in Paragraph 51 of the F AC.
52.

Defendant Intervenors admit that pursuant to Google's various agreements with

the Regents of the University of MichiganlUniversity Library, Ann Arbor Campus; The Regents
of the University of California on behalf of its California Digital Library; the Board of Regents

13

A-149
Case 1:11-cv-06351-HB Document 58

Filed 04/12/12 Page 14 of 21

of the University of Wisconsin System, d/b/a the University of Wisconsin-Madison, General
Library System; Cornell University; and The Board of Trustees of the University of Illinois, on
behalf of the CIC and the CIC Universities, aftcr digitizing a book from the collection of a
University, Google may provide a digital copy of the book to the University library or, at the
University's request, to MLibrary to be incorporated into the HDL, and Defendant Intervenors
admit that the terms of these various agreements provide that the digital copy include a sct of
image and OCR files and associated meta-in1ormation about the files. Defendant Intervenors also
admit that books that leave the premises of the Universities' libraries to be digitized are retllmed
to the libraries. Defendant Intervenors deny the remaining allegations in Paragraph 52 of the
FAC.
53.

Defendant Intervenors admit that some libraries have estimated their costs of

performing the act ofdigitization at approximately $100 per volume. Defendan t Intervenors deny
the remaining allegations in Paragraph 53 of the FAC.
54.

Defendant Intervenors admit that certain Universities, including UM, have

digitized works in their library collections. Defendant Intervenors deny the remaining allegations
in Paragraph 54 of the F AC.
55.

Defendant Intervenors lack knowledge 01' information sufficient to form a belief

about the truth of the allegations in Paragraph 55 of the FAC and thus deny such aUegations.
56.

Defendant Intervenors admit that The Authors Guild, Inc. and others filed a

purported class action lawsuit against Google in the Southern District of New York, AU/hoI'S
Guild, Inc. v. Google, Inc., Case No. 05 Civ. 8136 (S.D.N.Y. ftled Sept. 20, 2005), involving

Google's digitization of books (the "Google Books Lawsuit"). The complaint in the Google

14

A-150
Case 1:11-cv-06351-HB Document 58

Filed 04/12/12 Page 15 of 21

Books Lawsuit speaks for itself, and therefore Defendant Intervenors deny the remaining
allegations in Paragraph 56 of the PAC.
57.

Defendant Intervenors admit that Google and The Authors Guild, Inc. (among

other parties) filed a motion for approval of a proposed settlement agreement in the Google
Books Lawsuit. The proposed settlement agreement speaks for itself, and therefore Defendant
Intervenors deny the remaining allegations in Paragraph 57 ofthe PAC.
58.

Defendant Intervenors admit that the motion for approval of the proposed

settlement agreement was denied on March 22, 2011. Defendants also admit that Paragraph 58 of
the FAC accurately quotes from Judge Denny Chin's decision. Judge Chin's decision speaks for
itself, and therefore Defendant Intervenors deny the remaining allegations of Paragraph 58 of the
PAC.
59.

Defendant Intervenors admit that Paragraph 59 of the PAC accurately quotes from

Judge Denny Chin's decision, which speaks for itself. Defendant Intervenors deny the remaining
allegations in Paragraph 59 oflhe PAC.
60.

Defendant Intervenors admit that Judge Denny Chin's decision noted efforts by

Congress to pass orphan works legislation. Defendants also admit that the decision discussed
international law concerns raised by foreign authors and entities regarding the ASA. Judge
Chin's decision speaks for itself. Defendant Intervenors deny the remaining allegations in
Paragraph 60 of the FAC.
61.

Defendant Intervenors admit that the Google Books Lawsuit is still pending in the

Southern District of New York.
62.

Defendant Intervenors admit that on October 13, 2008, the thirteen universities

comprising the CIC, led by UM; UC's libraries, led by the CDL; and the University of Virginia

15

A-151
Case 1:11-cv-06351-HB Document 58

Filed 04/12/12 Page 16 of 21

announced the launch of the HathiTrust Service and the HDL, the shared repository of digital
collections of institutions participating in the HathiTrust Service. Defendant Intcrvcnors also
admit that there are currently more than fifty institutions, including universitics, libraries,
educational institutions, and consortia, tram around the world participating in thc HathiTrust
Service. Defendant Intervenors further admit that tile wehsite for the Hathi'l'rust Service states
that the mission of the HathiTrllst Service is "to contribute to the common good hy collecting,
organizing, preserving, communicating, and sharing the record of human knowledge. Defendant
(nlerv~nors

63.

deny the remaining allegations in Paragraph 62 ofthe FAC.
Defendant Intervenors lack knowl~dge or information sufficient to fo rm a belief

about the truth of the allegations in Paragraph 63 of the FAC and tbus deny such allegations.
64.

Defendant Intervenors lack knowledge or information sufficient to form a belief

about the truth of the allegations in Paragraph 64 of the FAC and thus deny such allegations.
65.

Defendant Intervenors lack knoivledge or information sufficient to form a belief

about the truth of the allegations in Paragraph 65 of the FAC and thus deny such allegations.
66.

Defendant Intervenors lack knowledge or information sut1icient to form a belief

about the truth of the allegations in Paragraph 66 of the FAC and thus deny such allegations.
67.

Defendant Intervenors admit that this is an accurate quote from the HathiTrust

Service website. Defendant Intervenors lack knowledge or information sufficient to form a belief
about the truth of the remaining allegations in Paragraph 68 of the FAC and thus deny such
allegations.
68.

Defendant Intervenors admit that the HathiTrust Service includes a search tool that

fle,mit, use" to conduct full-text searches of the works in the HDL to determine the number of
times a searched term appears, and the page numbers on which the searched term appears, in

16

A-152
Case 1:11-cv-06351-HB Document 58

Filed 04/12/12 Page 17 of 21

books in the HDL (including public domain and in-copyright works). Defendant Intervenors deny
the remaining allegations in Paragraph 68 of the FAC.
69.

Defendant Intervenors admit that the HathiTmst Service permits certain users to

view, search, print, and download full copies of certain volumes in the HDL, and Defendant
Intervenors admit that the level of access to a work is determined in part by the identity of the
user and the copyright status of the work, and deny the remaining allegations in Paragraph 69 of
the F AC.
70.

Defendant Intervenors admit that the HathiTrust Rights Database includes

categorizations of copyright status tor each work in the HDI " as determined through processes
conducted as patt of the HathiTrust Service or tluollgh other resources. Detendant Intervenors
also admit that the HDL allows users to view books identified as being in the pubJ ie domain nn
the HathiTrust Service website, wherever the users may have access to the website. Defendant
Int~rvenurs

deny the remaining allegations of Paragraph 70 of the FAC.

71.

Defendant Inlervenurs deny the allegations in Paragraph 71 ofthe FAC.

72.

Defendant Intervenors deny the allegations in Paragraph 72 ofthe FAC.

73.

Defendant Intervenors admit the allegations in Paragraph 73 of 11,e FAC .

74.

Defendant Intervenors admit tbat to identify whether an in-copyright work in the

HDL is an orphan work under its OWP pilot process, the OWP staff undertook a multi-step due
diligence process to check whether the work is commercially available for sale and, if it is not, to
attempt to locate and contact the copyright holder. Defendant Intervenors also admit that, under
the pilot process, if the OWP staff were unsuccessful in identifying a copyright holder, the
bibliographic information for the work would have been listed on the Ha11liTrust Service website
for ninety days. Defendant Intervenors further admit that, under the pilot process, if no copyright

17

A-153
Case 1:11-cv-06351-HB Document 58

Filed 04/12/12 Page 18 of 21

holder emerged during the ninety days, and ifUM owned a physical copy of the work in its
collection, UM, through the HathiTrust Service, planned to make the work available on a limited
basis to UM students, professors, and other authenticated users and visitors to the libraries at
UM's campuses, to view the work in full, print the work one page at a time, and dnwnload the
work one page at a time in single-page PDF files. Defendant Intervenors admit that no works
have been made available through the OWP and that the OWP pilot procedures are currently
being reexamined. Ddemlant Intervenors deny the remaining allegations in Paragraph 74 ofthe
FAC.
75.

Defendant Intervenors admit that in July and August of20 11, oLher participants in

the HathiTrust Service, including UC and Cornell, announced their intent to participate in Lhe
OWP and their intent to make works in their collections identified as orphan works available on
a limited basis to their respective students, faculty, and library patrons. Defendant Intervenors
deny the remaining allegations in Paragraph 75 of the FAC.
76.

Defendant Intervenors admit that a list of orphan work candidates was posted all

the HathiTrust Service website on or about July 15, 2011 .

77.

Defendant Intervenors admit that the initial complaint in this action was fLIed on

September 12, 2011. Defendant Intervenors deny the remaining allegations in Paragraph 77 of the
FAC.
78.

Defendant Intervenors admit that on September 16, 2011, MLibrary issued a

statement concerning the OWl'. Defendant Intervenors deny the remaining allegations in
Paragraph 78 of the FAC.
79.

Detendant Intervenors deny the allegations ill Paragraph 79 of the FAC.

18

A-154
Case 1:11-cv-06351-HB Document 58

80.

Filed 04/12/12 Page 19 of 21

Defendant Intervenors incorporate by reference their responses to Paragraphs 1

through 79 above.
81.

Defendant Intervenors lack knowledge or information sufficient to form a belief

about the truth of the allegations in Paragraph 81 of the PAC and thus deny such allegations.
82.

Defendant Intervenors deny the allegations in Paragraph 82 of the PAC.

83.

Defendant Intervenors deny the allegations in Paragraph 83 of the PAC.

84.

Defendant Intervenors deny the allegations in Paragraph 84 of the PAC.

85.

Defendant Intervenors deny the allegations in Paragraph 85 of the PAC.

86.

Defendant Intervenors deny the allegations in Paragraph 86 of the PAC.

87.

Defendant Intervenors deny the allegations in Paragraph 87 of the PAC.
DEFENDANT INTEVENORS'
AFFIRMATIVE DEFENSES AND OTHER DEFENSES

In humer answer to the FAC, and by way of a±1irmative defenses and other defenses,
Defendant Intervenors state that they will rely upon the following defenses if applicable and if
supported by the facts. Defendant Intervenors do not admit that they bear the burden of proof for
any of these defenses.
A.

Defendant Intervenors are entitled to access to the HDL because Defendants'
use of and activities with respecllo the works that are subject to copyright are
non-infringing fair uses and du not require authorization pursuant to Section
107 of the Copyright Act.

B.

Defendant Intervenors are entitled to access to the HDL because Defendants'
use of and activities with respect to the works that are subject to copyright are
non-infringing and do not require authorization pursuant to Section 108 of the
Copyright Act.
19

A-155
Case 1:11-cv-06351-HB Document 58

C,

Filed 04/12/12 Page 20 of 21

Defendant Intervenors are entitled to access to the HDL because Defendants
use of and activities with respect to the works that are subject to copyright are
non-infringing and do not require authorization pursuant to Section 109 of the
Copyright Act.

D,

Defendant Intervenors are entitled to access to the HDL becanse Defendants
use of and activities with respect to the works that are subject to copyright are
permitted under Section 110 oflhe Copyright Act.

E.

Defendant Intervenors are entitled 10 access

(0

(he HDL because Defendants

use of and activities with respect to the works that are subject to copyright are
non-infringing and do not require authorization pursuant to Section 121 of the
Copyright Act.
F.

Defendant Intervenors are entitled to access to the HDL because the collection
provides them equal access to the Defendants' library collections as required
under Titles II and III oflhe Americans with Disabilities Act.

Defendant Intervenors respectfully reserve the right to amend their answer to add additional
or other defenses or to delete or withdraw defenses after a reasonable opportunity for appropriate
discovery,

WHEREFORE, Defendant Intervenors request the following relief:
Ca) That Plaintiffs be denied all rei ief sOllght in the Jl AC;
(b) That the claims asselted in the Jl AC be dismissed with prejudice;
C Any such otl,er and further relief as the Court deems just and proper.
c)
Dated: December 9, 2011

20

A-156
Case 1:11-cv-06351-HB Document 58

Filed 04/12/12 Page 21 of 21

Respectfully submitted,
THE LA W OFFICE OF
ROBERT J. BERNSTEIN

By:

lsi
Robert J, Bernstein (RB 4230)
380 Lexington Avenue, 17th Floor
NewYork,NY 10168
Telephone: [phone]
Facsimile: [phone]

Counsel/or National Federation 0/
the Blind, Georgina Kleege,
Blair Seidlitz and Courtney Wheeler

or COUNflP,L:
Daniel F. Goldstein
Laura Ginsberg Abelson
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore Street
Suite 1700
Baltimore, Maryland 21202
Telephone: [phone]
Facsimile: 410-385-0869
[e-mail]
[e-mail]
Peter Jaszi
5402 Surrey Street
Chevy Chase, Maryland 20815
Telephone: [phone]
Facsimile: 301-656-7483
pjaszi@wc1,american,edu

21

A-157
Case 1:11-cv-06351-HB Document 58-1

Filed 04/12/12 Page 1 of 1

UNITED STA TES DISTRI CT CO URT
SOUTH ERN DISTR ICT O F NEW YORK

"Il-IF ,\ Ull-IORS GU ILD. INC , "I m ,
l

~
"C<C'C·"::.::""(ICjBO)__
I~
C nsc ••O,_

-"Rule 7 .1 Statement

IIA TIiITRUST, ~1 . 1 .

rursuanl 10 Fe:deral Rule: of Civil Proce:dure 7.1 rfomlcrly LOCIII
General Rule 1.9J and 10 enable Di$lrict Judge~ and Magistrate Judges ofl he Court
to evaillme possible disqu(lliricntion or recusnl, the undersign ed counsel for
(a

pri\'~te

non-govemmertal p~lTy)

ce rti Ii es lh 21 lh~ fo llowi ng are corporate pMents, a flil iate~ and/or ~ ubsidiari es of
sa-d p~lTy, whIch are pub ld)' held.

NONE

Dale:

Mlorn~J

FOnT kLl<1 I.J<II- SDNY Web 100001

lb. !.:Odf: _ _ _ _ __

A-158

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
THE AUTHORS GUILD, INC., et al.,
:
Plaintiffs,

:

v.

Case No. 11-cv-6351(HB)

:

HATHITRUST, et al.,

:

Defendants.
:
----------------------------------------------------------------X
DECLARATION OF LAURA GINSBERG ABELSON
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
I, Laura Ginsberg Abelson, do hereby declare that:
1.

I am over eighteen years of age and am competent to make this Declaration.

2.

I am attorney admitted to practice in the State of Maryland, the United States

District Court for the District of Maryland, and the Fourth Circuit Court of Appeals. I have been
admitted pro hac vice in this matter.
3.

Attached hereto as Exhibit A is a true copy of excerpts from the transcript of the

Rule30(b)(6) deposition of the Copyright Clearance Center by Fredric L. Haber, its General
Counsel, taken on June 4, 2012.
4.

Attached hereto as Exhibit B is a true copy of excerpts from the transcript of the

Rule30(b)(6) deposition of Google, Inc. by Daniel Clancy, Engineering Director, taken on June
1, 2012.
5.

Attached hereto as Exhibit C is a true copy of excerpts from Objections and

Responses of the Individually Named Plaintiffs to Defendant-Intervenors’ First Set of
Interrogatories and First Request for the Production of Documents, dated May 8, 2012.

1

A-159

6.

Attached hereto as Exhibit D is a true copy of the Declaration of Georgina

Kleege, dated December 5, 2011, as previously filed in support of Defendant Intervenors’
Motion to Intervene.
7.

Attached hereto as Exhibit E is a true copy of the Declaration of Blair Seidlitz,

dated December 6, 2011, as previously filed in support of Defendant Intervenors’ Motion to
Intervene.
8.

Attached hereto as Exhibit F is a true copy of the Declaration of Courtney

Wheeler, dated December 6, 2011, as previously filed in support of Defendant Intervenors’
Motion to Intervene.

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Dated: June 29, 2012

/s/
Laura Ginsberg Abelson

2

A-160

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ,P.C.
488 Madison Avenue, 10th Floor
NewYork,NewYork 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------X
THE AUTHORS GUILD, INC., et aI,
Index No. 11 Civ. 6351 (HB)
Plaintiffs,
- againstHATHITRUST, et al.
Defendants.
--------------------------. ---.. -------------------------X
OBJECTIONS At"<D RESPONSES OF THE INDIVIDUALLY NAMED
PLAINTIFFS TO DEFENDANT-INTERVENORS' FIRST SET OF
INTERROGATORIES AND FIRST REQUEST FOR THE
PRODUCTION OF DOCUMENTS
The individually named Plaintiffs in the above-captioned action ("Plaintiffs") hereby
submit, pursuant to Rules 26, 34 and 36 of the Federal Rules of Civil Procedure and Rules 26.3
and 33.3 of the Local Rules for the Unites States District Courts for the Southern Districts of
New York (the "Local Rules"), the following objections and responses to Defendant-Intervenors'
First Request for the Produclion ofOocumen(s ("Requesls").
GENERAL STATEMENTS

A

Plaintiffs incorporate by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a

FKKS: 457446:vl

19894.300

A-161
. ,
,

REDACTED

SPEC IFIC Oll.TEC rlONS AND RRS PONSES TO TNTERROGATORIRS
1.

State

th~ ~aks

rn 'enuefor each o/the lastf rve years /or !lales to Ihe blind of

digirai C ptes ofaU titles/oT which you hold a CQpyrigJ.t. ldenrif a!/ do(:lIme fl{3 rmd
Q
y
COtmiTlmical iC1!$ refoled to thes!! !;(lIes.

REsrO:\'S]t;:
Plaintiffs object t l) thill R.eqne51 on the grOlmd thaI it is overbwfld. unduly bmden.o;ome
rmrl i>:eeks in fnnnaLion not rel~''' iln t to any claim or

defe n .~e

in Lhis lawsuil Jlm\ ntl l reaso nably

ctI!I,;ulaled to lead to the discovery of adfllissiUe evidence. Subjl:ct to ill1( without waiving the
foregoi.ng objection or (lny General Objcxtions, Plaintiffs respond thot by lrndition and incit:.stry
practice, authors generally do llot receive rO
Y<llIics for tbe licensing and sale of works &,tribu~c.
in specialized fomlats e.xclusively for use by the blind or other personS w ith disabilitic".
Furthelmore. 17 U.S.C. § 121 specifically per.nits the rcproducticn of cop yrighted liteiary works

by one or more "authorized e...'ltit[ies]" in "specialized formats exclusive:y for \:.S1! by blirui or
otller pt.rsons with

d i ~_bilities."

Accordingly, for 1lle purposes oftbls litigAtiOn, Plrtinriffs !lr.! no1

5

A-162
"''',

,

cltliming thnt any reveoue or (lther earnings of any kind were generated or are exp"'.A;ted to be
gcncrlUed in whole or part by the reproduction or distribution by Defendanl'! of coj:ies of
Plaintiffs' work(s) for use hy b!ind or other visually di~bl ed persoll . In addition, Plaintiffs refer
to documtmts!pnwirms!y prori \l~.d to

DefflndalllS in this (lctton, WhirJl wi11

h~

mllde f'lWlilAble 10

Detendant-Intervenors upon request

REDACTED

l'KK S; 4n<l4S.vl

6

1 ~~94.300

A-163
I '

REDACTED

5.
lfyoll conlrmd that the actions of Defendants 11(1\'(1 q([ectfld the morlal for digital
books in fully accessible. formals made available for library fending to persons who cannot
{lccess prim, state all facl s that j'uppnrt Ihis co1llenlion.
RF.,sPONSE:

See Rcspcnst:: to RequesL No. 1. In addition, Plainliffli objecllo tllis TnLwogatory un th;::
ground that it seeks information in the possession ofDeicndants and/or third p2Jties. Plaintiffs

further slate that they have not identified any SJ:cciuc. quantifiable past hatm. or auy documents
relating to my such past hrum, suffen:d as a lCSUit of the actions of Dcf::ndonts iU,rnakir.g ooab

in fully u.,--oossible formats available tOr library lending to persons \Yhc c::tnnot access ?rint
versions of such boob:.

7

198'M.J(;U

A-164

REDACTED

"

Dak:.J : New York, l-.":cw York
May 8,2011

FRANKFURT KURNlT KLEIN & SELl, P,C.

BY:;;:;:'(~c\"2ct, .'0--;--'-(l_ ,- _
/ ~· ,.,.,2 "",-__
Edwa.rd H. Rmcnlhal
.ruemy S, GoldlMn

488 M,,"(iisoll AvellUC, Wlh Floor
New York, New York. 10022

T, !. (212) 980-0 120
Fax: (2 12) 593·91 75

[e-mail]
[e-mail]

TO:

Dalliel F. Oold~teil\ Bsq. (admitted pro hac vice)
Laura OJ
.ljsberg Abelson, Esq. (admitted pro hac viuj
BJ'OWll. Goldstein & Levy, LLP
J2 0 Baltimore Street, Suite 1700
Oaltimort:, MD 21202
Tel: [phone]
Fox: (410) ·3850869
Email: dfl!@brQwugold.ccm
[e-mail]
Robert 1 Bernstein, Esq.
-n le ·La'.... OfficI;: ofRobcrt J.

D~tdn

380 Lexington AVC!lue, 17tb Flcor
New York, ~y 10168
Tel: (2 1 2)-~:H-l068
PO;I\: (21 2)-55 1-1001

!'!O,S, 4S:l446.v I

8

A-165
Case 1:11-cv-06351-HB Document 27-4

Filed 12/12/11 Page 2 of 3

IN THE UNITED ST ATRS mSTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

nm AUTHORS GUILD, INC., et at,
Plailltlffs,

Case No. ll-ev·.6351(HB)

v.
HATImRUST, et at,

De/Clldams.

DECLARATION OF GEORGINA KLEEGE

I, Georgina Kleege, do hereby declare that:
1. I am over eighteen years of age and am competent to make this Declaration.

2. I am legally blind.
3. I am a Lecturer in Cfe~tive Writing alld Disability Studies and a member ofth"
English Department at the University of Califomia, Berkeley, I have served in this
position since 2003. Previously, I was an Adjunct Professor at the Ohio State University
from 1991·2002.
4. To access prillt materials, I usc JAWS, a screen readeI'. Although [read braille,

the paucity of titles in braille and the expenses and delays in creating. braille book c.\\s.
me to rely mostly all digital copies of books and journals for work and pleasure reading,
I obtain digital books fi·om Bookshare when they are available.
S. Currently, wltenI wish to read books from the Berkeley library, I must "Can each
page and 11m it through optical chunlcter recognition software, Thi. process i. very time
consuming, As a result, I rarely horrow print materials from the library.

A-166
Case 1:11-cv-06351-HB Document 27-4

Filed 12/12/11 Page 3 of 3

6. The lack of accessible print matel'iuls has nffeoted my education and career.
Although [was very successfbJ as an undergrad\late student at Yale University, I spent a
significant amount of time searching for human readers to help me complete my
cout·sework. Becallse of the time constraints involved with finding roaders, my
professors discouraged me ft'om pUlsuing a Ph.D.

7. III addition, I know that the Berkeley Student Disability Services Office cannot
timely process alllcqucsts fOl' aocessible print materials. Although the people in that
office are highly skilled and educated to provide training and cOlIll,eling for students,
they spend the majorily of lheir time scanning books fat· prinHlisabled students. For
blind Berkeley students and faculty to have immediate aCCess to millions afbooks
through the HathiTmst collection would elevate those studonls' and my own ability to
ftmction and would give \1S access to the same trove of in lormation available to our
sighted peers. Moreover, the timo I spend .emehing for aI' making accessible copies

could be devoted to my academic pursuits. Immediate access to electronic versions of
millions ofliteTHry works would be, for me, .tran6formative.
I declare under penalty ofpe!jut'y that the foregoing is 1111e and correct.

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Case 1:11-cv-06351-HB Document 27-2

Filed 12/12/11 Page 2 of 3

IN THE 'UNITED STATES nrSTRICT COURT
I''OR THE SOUTHERN nrSTRICT OF NEW YORI(

THE AUTHORS GUILD, INC., etal"
Plalllt/ff.l,

Case No. 1l.Dv-6351(HB)

v.
HATHlTRUSl', et aI.,
Defendants.

DECLARATION OF BLAIR SEIDI,rrZ

I, Blair Seldlltz, do hereby declare that:
1. I am over eighteen years of age and am competent 10 mllke1his Deolaration.

2. My home address is Jl829 West TesohAvenllo, Ol'confield, Wisconsin 53228.
3. I am legally bllnd.
4, I cUll'ently am ajlUliOl' at the Unlversity of Wisconsin, Madison. I am pursing a
degree In Engineel'ing Physics und I intend to apply to Ph.D. programs when I gl'uduate.
5. Currently, when I wish to borrow books fmm the Wisconsin library, [ml1st
photocopy Ihe books and scan each page with my Kmzwell™ scanner,
6. This ~I'OCCSS is VOl'Y timo col1swuing and I try to avoid borrowing prilll jn~terials
from the Hbml'Y.

7. To complete Illy reading for olass, r pUl'chases accessible copies of j'equired texts,
but I do not access supplemental materials that my sighted classmates borrow fl'Olll the
libra!,),. If! had acce,~s to digital copies ofl11e library's collection, I would be able to
access these supplemenlal matedals.
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Case 1:11-cv-06351-HB Document 27-2

Filed 12/12/11 Page 3 of 3

8, Iff huillloo0SS to the Hat'hlTi'ust oolketton, 1 wonld 'b~ able to ~Xl)loro auYiO)lic I
wllnted atatty tilllo, Wllh.ase, like. my slll!)fed clnssmatr;s, My education woukl110t be
.OOl1l111~d lo the

ll111itea tllll1tbel' onojlk~uovcl'{ld 1n'the ·books I jllll'Ohasc,

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Case 1:11-cv-06351-HB Document 27-3

Filed 12/12/11 Page 2 of 3

IN THE UNIl'ED.,gTATES DISTRICT COURT
FOR, THE.Sotr:tHli:RNDISTRIC1', . .NEW YORK
...
' . 0.1'
.,

","

1'HHAUTHORS·GUILD,.INC., et aI.,

Plaintiffs,

Case No. lJ.,cv-6351(HB)

v.
UATlITTRUST, etal.,

Da/andants.

.DECLARATION: OF COURINEY WHEELER

J, Courtney Wheeler; do hereby declare-that:
1. TamoVel' eighteen years.ofage:and ,a'mcompetent tQwaketbi'aDeelaration,

2. My home address h 3919 Sterling Drive, Eau ClaIre, Wisconsin, 54701.

3. bm legally blind.
4. I oUl1'ently am a junior althe University of Wisconsin, Bau Claire: lintend to
transfer lo:the University of Wisconsin, Stout, for the spring :l.Oi2 semester. I ·am pursing
a 1)aohelol'" degree in PsycholQgy.

S. I prefer to access pdntmaterials using the screen reader on Illy computee

o.

When I purch.se 1extbooks for my classes, I am usually able to obtain an

accessiblceo.p,Y .Ofth03Cbooks from Lenming Ally, a service that provides audio
recorded versions ofpuJ'chasedtexls for blindrea<!e!'s. Learning Ally, however, l~1IO(
avallable for hooks I wish to borrow £i'om the Ulliv~rsity ofWisCOfiSitl Libraty.
7. Td get access to print libnuy books, (bring tllyhusband or a friend a. a reader.
This :procesir}s very lithe consuming,imd dependent on the'av;ri.1ability of arearler..

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Case 1:11-cv-06351-HB Document 27-3

Filed 12/12/11 Page 3 of 3

8. As a result, Xchoose /lot to take elective classes that require researchpapets. In
the past, I haveunsuc~cssfully pelitio!led the University of Wisconsin (0 exempt me from
conducting libraryregearch as·.an·accommodation.formy disability, and from Courses that

.require·specific books@dTeading mlltcerials that are. not available ill accessible formats.
However, I would prefer the opportunity to have access to library materials to the same

eXtent alld at tho samatimc as 'CVCIYOl1C else, because I would tike to take advantage of
all of the educational opportunities available to my peers.
I decl.reunde!' penalty of-perjury that the foregoing i. tme ana correct.

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

THE AUTHORS GUILD, INC., et al.,
Plaintiffs,

Case No. 11-cv-6351(HB)

v.
HATHITRUST, et al.,
Defendants.

DECLARATION OF DR. MARC MAURER IN
SUPPORT OF MOTION FOR SUMMARY JUDGMENT
I, Marc Maurer, do hereby declare that:
1. I am over eighteen years of age and am competent to make this Declaration.
2. My business address is 200 East Wells Street at Jernigan Place, Baltimore, Maryland
21230.
3. I am legally blind and have been my entire life.
4. I received a bachelor’s degree from Notre Dame University in 1974 and a J.D. from the
University of Indiana School of Law in 1977.
5. I am the President of the National Federation of the Blind, a position I have held since
1986.
6. The National Federation of the Blind was founded in 1940 by a number of individuals
notably including Jacobus tenBroek, a blind constitutional scholar, whose works, such as The
Antislavery Origins of the Fourteenth Amendment, later published under the title Equal Under
Law, The Right of the Disabled to Live in the World: Disability and the Law of Torts, and
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Preiudic~ ar

and the Constitution, have had a major influence on the development of civil

rights. Dr. tenBroek founded the NFB in the bclicfthat there are effective nonvisual alternatives
for most educational, quotidian and workplace tasks and that with equal opportunity, the blind
can be full participants in all aspects of society. Today, the NFB, with affiliates in all 50 states,
Puerto Rico, and the District of Columbia, consists of more than 50,000 blind people, their
families and friends.
7. Every year, the National Federation of the Blind offers significant scholarship to blind
college and graduate students in disciplines as varied as chemistry, engineering, physics, history
and law. While many of these students prosper according to their talents and commitment to
their studies, they compete under a severe handicap. That handicap is not a lack of sight, but a
lack of access to information in a world in which information is the key to success. In a world in
which the bulk of intellectual capital was contained in printed text, access was limited by
considerations of cost, labor, resources and the low incidence of blindness in the popUlation.
When it became possible for that intellectual capital to be available in a digital format, a format
that does not require sight to get at the content, there was, for the first time the opportunity that
the blind could get at the same information with the same facility and to the same degree as the
sighted. To date, however, other than in the instance of the University of Michigan Library, that
possibility has not yet been realized.

Significance of the HathiTrust Digital Library Scans to the Blind
8. As early as 1931, when Congress passed the Pratt-Smoot Bill, separate libraries for the
blind emerged in the United States to create and offer recordings of print books and braille
copies. However, given the production time involved to make such alternative copies, only a

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small fraction of the world's books were available to us. As the technology to make digital
books became possible, the system of separate libraries for the blind remained in place.
9. Today, the only accessible digital books available, other than those for purchase through
Apple iBooks and KNFB Blio, are the library collections of Learning Ally, Bookshare, and the
National Library Service for the Blind and Physically Handicapped CNLS). Thesc librarics
receive paltry funding and must perform mueh handwork to re-format the digital book files they
receive from publishers or scan from print into accessible e-books that the blind can use.
lO. Because the capacity and funding of these specialized libraries are so limited, they can
make accessible only a small fraction of the titles available each year to the population at large.
To appeal to the broadest audience, the libraries predominantly select the most popular titles. All
together, the number of accessible books currently available to the blind for borrowing is a mere
few hundred thousand titles, a minute percentage of the world's books. In contrast, the HDL
contains more than ten million accessible volumes.
11.

Access to the HDL scans would do far more than increase exponentially the textual

information available to the blind; it would transform the opportunities for blind students and
scholars to conduct research independently-a critical aspect both of modern education and the
development of new ideas. Because today's blind students in higher education cannot
independently conduct scholarly library research, they are at a severe disadvantage compared to
their sighted peers. Rather, blind students have access, at most, to required reading. Even then,
the blind student must generally first search to see if an accessible copy is available from one of
the specialized libraries for the blind. Since those collections contain few scholarly or academic
materials, the blind student most often turns to his to her disabled students service ot1ice CDSS)
to attempt to locate a digital file [rom the publisher or rip out the pages of a print book to scan,

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OCR, and render into what becomes a poor-quality digital file of the book that can be difficult to
read with a screen reader. Because the work involved to create these scans is time-consuming
and the DSS offices are often overworked, it sometimes takes months or until the end of the
semester for the student to actually receive the accessible material.
12. In late 2004, when I became aware that Google was making arrangements with major
academic libraries to make digital copies of their collections ̶ works never before available
independently to the blind, at a volume never before available to the blind ̶ I realized the
revolutionary and equalizing potential the scope of such a project could have for the blind,
particularly the blind scholar or student, and set out to ensure these works would be accessible to
us.
13. After an initial inquiry to Google about accessibility did not yield a positive response, I
determined to visit each of the academic libraries partnering with Google to press upon them the
importance of accessibility. Our first stop, in early 2006, was the University of Michigan, where
we were advised by John Wilkin and the library’s counsel, Jack Bernard, that it was the firm
intention of the University of Michigan that the digital collection be available to the blind and
they described how they envisioned that access would be triggered through certification of
blindness by the DSS office.
14. In 2008, the University of Michigan advised that it had set up the infrastructure to begin
to make the collection available to blind students and invited us to the campus for a
demonstration of how the system worked.
History of the Publishing Industry’s
Lack of Interest in a Marketplace that Includes the Blind
15. For more than 20 years, the National Federation of the Blind has vigorously worked to
ensure that digital information is rendered accessible on devices that are accessible.
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16. In the 1980s, when DOS was first introduced, equal access by the blind to digital
currently created information was simpler. Through our Research and Development Committee,
we developed screen access technology, the speaqualizer, that could obtain and render aurally
the infonnation on the screen. In those days, computer screens displayed text and the screen
access software simply read aloud the text information and navigational markers, such as
paragraphs and page numbers, behind the screen.
17. When DOS was overtaken by Windows, we lost much of the access we had previously
achieved. We fought and worked with dcvelopers to cnsure that Windows tcchnology would bc
compatible with screen access software and, though we won that battle, we continue to face
barriers when developers create inaccessible websites, software programs, and now, mobile
applications and devices.
18. With respect to books and printed materials, the proliferation of digital information and
technology held great promise for the blind. Previously, when books were available only on ink
and paper, the blind could only access thcse materials if they were converted to braille or read
aloud by a human reader in person or by recording.
19. In the late 1980s, George Kerscher, a blind then-university student and now expert in
accessible book technology, created the first publicly available e-book. The e-book was fully
accessible to the blind. He later developed the DAISY standard to ensure that the digital content
of publisher files could be read by everyone, including the blind.
20. In the late 1990s, the first commercially available e-books entered the marketplace,
including e-readers from Microsoft and Adobe. While the underlying content of the books
would have been accessible to us, the interfaces on which they were offered, were not. Thus the
blind were locked out of these books.

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21. As, over the years, the e-book marketplace grew, publishers and authors continued to
exclude us, adding digital rights management software that further excluded us from the content
or locked the content for use on inaccessible devices.
22. After Amazon announced the launch of the Kindle e-book reader, a completely
inaccessible device, I convened at the NFB headquarters a summit of stakeholders to discuss
commercially feasible solutions that would be accessible to the blind and people with print
disabilities. The attendees included publishers such as the American Association of Publishers,
the Association of Educational Publishers, university presses, companies in the business of file
conversions, such as Overdrive, distributors, including Amazon, and other involved parties such
as Bookshare and Reading for the Blind and Dyslexic (now Learning Ally).
23. The publishers and distributors largely expressed their belief that a marketplace of the
blind and print disabled was too insignificant to justify making their content accessible in the
mainstream marketplace. They told us they were more concerned about possible piracy ifbooks
were made accessible to screen access software than they were about the benefits of making a
mainstream e-book marketplace accessible.
24. Around the same time, I also met with university publishers to persuade them to offer
their digital catalogs for sale in accessible formats.
25. In 2008, I, along with George Kerscher and our legal counsel Daniel Goldstein, met with
representatives of Amazon to try to persuade them of the commercial benefits of making the
Kindle e-book reader accessible. We told them how the addition oftext-to-speech on the Kindle
would benefit everyone, from the dyslexic child in school to the business executive who after
disembarking the plane, could continue reading his Kindle book in the rental car via text-to-

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speech. To make the device accessible to the blind would only involve extension oftexHospeech to the menus, controls, and navigational infrastructure.
26. Subsequently, Amazon released the Kindle 2, which added text-to-speech to the content,
but not to thc navigational structure. As a result, we could not use it. We could not
independently turn on the text-to-speech function, purchase books, sclect thc books we wanted to
read, or start, stop or otherwise navigate through a book.
27. Immediately after the release of the Kindle 2, however, we faced an even larger battle.
The Authors Guild protested Amazon's deployment oftext-to-speech software to read the
content on thc Kindlc 2. They argued that reading a book out loud through text-to-speech
requires the specific permission of the copyright holdcr. Thc Authors Guild also expressed a
concern that text-to-speech could inhibit the development of the market for audio books. On
February 24, 2009, the New York Times ran an op-ed piece by Roy Blount, Jr., President of the
Authors Guild, which escalated media attention on the issue.
28. In response to increasing pressure from authors and publishers, Amazon announced only
a few days later that it would modify its system so that authors and publishers could turn off textto-speech on a title-by-title basis.
29. The NFB quickly worked to convene a coalition of disability groups, the Reading Rights
Coalition, representing the more than 15 million Americans with print disabilities. The Coalition
grew to include more than 30 national and international organizations.
30. Through the NFB's legal counsel, Daniel Goldstein, the Reading Rights Coalition, sent a
letter to the six publishers who then provided c-books for the Kindle 2, asking each ofthcm to
allow their books to be read on the device with text-to-speech and explaining that the coalition
would engage in a national public education campaign in hopes of reversing the stance of the

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authors and publishers who had demanded disabling text-to-speech for the content of their
Kindle books.
31. We then, through Mr. Goldstein, initiated a dialogue with Paul Aiken, executive director
of the Authors Guild, to discuss the effect of its actions on the print-disabled community and the
market benefits that would flow to the authors if it welcomed the 15 million new customers who
cannot consume or easily consume print books.
32. In response Mr. Aiken proposed a separate registration system for people with print
disabilities, whereby a blind or print-disabled person would register as disabled and receive a
code that would override the disablement oftext-to-speech on the Kindle 2.
33. After consulting with the coalition, Mr. Goldstein explained why a registration system is
an unworkable and unacceptable solution. Mr. Aiken responded, offering the possibility of
making text-to-speech e-books available at an additional cost. The Coalition unanimously
agreed that a "disability tax" was also not an acceptable solution and declined to offer any other
proposals.
34. The NFB and the Reading Rights Coalition promptly convened a protest in which we
picketed the headquarters of the Authors Guild in New York City. We put together a petition,
which obtained thousands of signatures, demanding that text-to-speech stay on, and we leaned on
authors for support.
35. Our efforts culminated in a statement issued by the White House with agreement from the
NFB, the Authors Guild and AAP that digital books should be accessible. However, two
publishers continued to keep the tcxt-to-speech turned off for the content of their books.
36. In May 2009, Amazon released the Kindle DX without adding any accessibility tor the
blind. Amazon marketed the Kindle DX as an e-book reader for academic and student use. Six

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universities announced a pilot program in which thcy would deploy the inacccssib1c Kindle
device to students. We promptly filed a federal court complaint against Arizona State University
and administrative complaints against the other universities with the Departments of Justice and
Education against the universities for violating their obligations under the Americans with
Disabilities Act and Section 504 of the Rehabilitation Act. These complaints and the lawsuit
ended in agreements to terminate usc ofthc Kindle DX and to prohibit future programs involving
inaccessible e-book reading technology.
37. While Amazon later released the Kindle 3 with some additional accessibility features, it
lacked the navigational facility required to make the device usable. Subsequent e-reader devices
released by Amazon, including the Kindle Fire, are completely inaccessible to the blind.
38. Meanwhile, Barnes & Noble's Nook became a significant e-book reader in the
marketplace and completely ignored accessibility in both its device and online platforms.
39. The options for mainstream access in the marketplace are very slim today. Only Apple's
iPad and iBooks and the KNFB reader platform are fully accessible.
40. The history is clear that publishers and authors have never considered the market for
books for the blind to be commercially significant. I have not seen any evidence that this trend
has reversed. There is no potential markct of significance at this time for books for the blind.

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Dated:

0I

(L

Marc Maurer

9