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]

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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 GEORGE KERSCHER
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
I, George Kerscher, do hereby declare that:
Background and Qualifications
1. I am over eighteen years of age and am competent to make this Declaration.
2. I am legally blind.
3. Attached hereto as Exhibit A is a copy of my curriculum vitae.
4. I have dedicated the last 25 years to creating and promoting digital access to print
documents for the blind. I received a bachelor’s degree in English Education from Northeastern
Illinois University in 1974 and taught special education and English in public schools from 1975
to 1985.
5. I then began working toward a master’s degree in computer science at the University of
Montana in 1985.

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6. While working toward my master’s degree, I developed the concept of computerized
books for persons with print disabilities, a term I coined during the same time. A print-disabled
person is someone who cannot effectively read print because of a visual, physical, perceptual,
developmental, cognitive, or learning disability.
7. I developed computerized books because, as a blind master’s degree candidate in
computer science, I could not access even a single book I needed to complete my degree. I
therefore decided to develop the technology to create such books for myself and others with print
disabilities.
8. During my time as a student at University of Montana, I founded and developed
Computerized Books for the Blind and Print Disabled (CBFB), through which I began creating
e-books from files from publishers. In 1988, I created the first publicly available e-book, a copy
of Mastering WordPerfect 5.0.
9. I did not attempt to patent the e-book technology because I wanted it to be readily
available to anyone who was willing to make accessible books for the blind.
10. Ultimately, I left University of Montana without completing my degree. Because I could
not obtain books relevant to my field of study, the thesis requirement for my master’s degree was
nearly impossible to complete. The university would not grant me thesis credit for the work I
had done developing e-books. I chose instead to pursue my professional goal of improving
accessibility for the broader population through CBFB.
11. Over the last twenty years, I have served on numerous panels and committees dedicated
to improving the creation and distribution of electronic accessible texts for the blind. These
include: The Commission on Accessible Instructional Materials in Postsecondary Education for
Students with Disabilities; the National Instructional Materials Accessibility Center (NIMAC)

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Advisory Committee; the U.S. National File Format Technical Panel; the World Wide Web
Accessibility Initiative Steering Council; and the International Committee for Accessible
Document Design.
12. On May 7, 2012 , I was one of fourteen individuals honored at the White House as a
Champion of Change for leading the fields of science, technology, engineering, and math for
people with disabilities.
13. I serve as the Senior Officer of Accessible Technology at Learning Ally. Learning Ally,
formerly known as Recording for the Blind & Dyslexic, creates recorded copies of print
materials for K-12, college and graduate students, and veterans and lifelong learners, who cannot
read standard print due to blindness, visual impairment, dyslexia, or other learning disabilities.
Learning Ally’s collection of more than 70,000 digitally recorded textbooks and literature titles
is one of the largest of its kind in the world. I have worked at Learning Ally since 1991, first as
Research and Development Director from 1991-1995, and in my current position since 1995.
Learning Ally is a 501(c)(3) non-profit corporation.
14. Currently, I also serve as Secretary General of the DAISY Consortium, an international
association that develops, maintains and promotes international DAISY (Digital Accessible
Information System) Standards for authorship and distribution, and am President of the
International Digital Publishing Forum (IDPF), which is the global trade and standards
organization dedicated to the development and promotion of electronic publishing and content
consumption. Both of these organizations work to promote accessibility in electronic publishing.
15. Through my committee participation and my positions with the DAISY Consortium,
IDPF, and Learning Ally, I have remained integrally involved with the development of electronic

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books and am intimately acquainted with the issues surrounding the creation and distribution of
materials in formats that are accessible to the blind.

Statement of Opinions
16. The availability of the HathiTrust Digital Library (HDL) stands to revolutionize blind
students’ and scholars’ ability to compete with their sighted counterparts. The HDL titles I have
reviewed are the most sophisticated and accessible scanned copies of print materials in a large
collection I have ever seen.
17. New digital books can be readily made accessible but rarely are. Even if new books are
to be made generally accessible, the expense of converting existing library collections with many
highly specialized and even out-of-print books means that the type of mass digitization
conducted by the HathiTrust, with complete metadata, is unlikely to ever occur again. There
simply is no market for digital copies of old and out-of-print books in which only students and
scholars have an interest. Publishers have not made digital copies for sale of the vast majority of
the books that are available in a university library and are unlikely to do so in the future. Thus,
the only way any one of these books will become available to the blind is if someone, either the
HathiTrust, a disability student services (DSS) office, Learning Ally, Bookshare, or the NLS,
makes an accessible copy.
18. To truly provide equal access for blind students and scholars to a university library, mass
digitization of a collection like the HDL is necessary. Without this, blind students and scholars
will always be limited to ad hoc access to titles they identify and request to be scanned without
being able to search the library or skim materials in the way that sighted researchers can.

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Without a fully digitized collection, therefore, blind researchers will never be able to compete
with their sighted counterparts in academia on a level playing field.
Factual Basis for Opinions
I.

Explanation of accessible digital books

19. Prior to the development of accessible digital books, the blind could access print
materials only if the materials were converted to braille or if they were read by a human reader,
either live or recorded. Accessible digital books that are available to sighted and blind alike are a
revolutionary change for blind readers seeking access to content over either braille or human
readers.
20. Although human narration was once the best access a blind reader could receive to print
materials, the technology of accessible books has advanced far past the capabilities offered by
human narration, making human narration alone substantially inferior to use of accessible digital
books. To use a live human reader is expensive or burdensome for a family member or friend.
Moreover, live readers’ orations cannot be reproduced, giving the blind reader only one
opportunity to hear the material. Live readers also cannot increase their speed – they are
inherently limited to the pace they can reasonably read aloud. (Live readers may not be available
until the wee hours the morning before a term paper is due.) Recorded human narration resolves
some of these issues, like repetition and speed (and reader exhaustion), but presents its own
problems. Typically, it will take six months to more than a year for a blind person to receive a
requested recording of a textbook from an entity like Learning Ally. Moreover, even recorded
human narration cannot be navigated like an accessible digital book and will not allow a reader
to hear each character to discern spelling.

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21. Today, blind readers access digital books with a screen reader or built-in text-to-speech
software, both of which can output information either as a computerized vocalization of the text
or as braille, through a refreshable braille pad. Unlike books narrated by human readers,
accessible digital books can be read as quickly as the reader wants, or even skimmed. Further,
they provide significant search and navigation capabilities, allowing readers to jump from
chapter to chapter, paragraph to paragraph, and sentence to sentence, as well as to discern
spelling. This allows blind readers to re-read certain sections of a work they might not grasp on
the first pass, just as a sighted reader may re-read a complicated passage.
22. Not all digital information is accessible. For example, scanning a copy of print material
usually results in a file in portable document format (PDF). PDFs are created essentially by
taking a picture of the page. This gives a sighted person enough to read on a computer screen,
but it does not allow screen reader software to recognize the text.
23. To take this next step toward accessibility, the scan must be run through optical character
recognition software (OCR) and optical structural recognition software (OSR). OCR/OSR
software takes a high resolution image of the page and recognizes the image of characters and
even structural data like columns and images . Character recognition software looks at the
characters and compares them to a database of what it knows. For example, the software will
match an image of the letter “c” to image of the letter “c” in its database. The software will also
check spelling, to ensure it has matched the image correctly to images of characters in known
words. The OSR component will recognize word boundaries, text block boundaries, and, on
occasion, headings. The software then identifies the x/y coordinates of all the characters on a
page and attempts to identify the correct reading order for each page, when there are columns or
images that alter the usual reading order. The OCR process also allows the text to be searched.

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24. A further step called “tagging” provides additional metadata about the content, such as
the existence of tables in a work or the existence of headings and other document structures.
Although the OCR engine will try to add meaningful style information, no existing software can
recognize document structures perfectly and this final step must be completed manually. Only
materials that are originally created for digital books, or “born digital,” rather than scanned from
print material do not have to be manually tagged. Tagged works provide to blind readers the
closest equivalent to the experience of a sighted person reading the material in its print form, but
the labor required to create them has made them very rare.
25. Accessible digital texts present a further benefit for low vision readers over human
narration alone. These users often will use print and sound at the same time. They may be able
to visually discern paragraphs or chapters while using sound to read characters and words.
Human narration therefore is substantially inferior for low vision readers who have some usable
vision.
26. Even what are commonly referred to as “audiobooks” do not provide the benefit of
accessible digital books. While having Jim Dale or Stephen Fry read Harry Potter and the
Order of the Phoenix is ideal for entertainment purposes, it does not provide equal access for
academic or scholarly pursuits. The ability to access text at high-speed is crucial for students
and researchers alike—accessible digital books, like those in the HDL, make high-speed access
possible, where audiobooks cannot. Digitally accessible books make it possible for readers with
print disabilities to “virtually” bookmark a page, to electronically jot notes in the margin, and to
digitally riffle through pages to “scan” for just the right passage. While there was a time where a
book read dramatically or even non-dramatically by a human was the best users with print

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disabilities could hope for, advances in technology mean audiobooks do not equal (and are vastly
inferior to) OCR’ed books in the modern era.
27. The DAISY Consortium and the IDPF have established standards to ensure that “born
digital” material is accessible. Any digital copy of print material that is created to meet the
DAISY standard will be fully accessible to the blind.
28. The IDPF develops and maintains the EPUB content publication distribution standard,
which is a generally available open standard, available without royalty, for the next generation of
commercial and non-commercial digital books. The standardization of a distribution file means
that publishers can design their print materials using any authorship tool, convert them to an
EPUB file, and then provide that file to any e-book distributor, which will be able to publish the
content on whatever platform it uses.
29. The latest EPUB standard, EPUB 3, incorporates the current DAISY requirements for
distribution, which ensures that all documents published using EPUB 3 that follow the
accessibility guidelines will be distributed in an accessible format, unless publishers then convert
the EPUB files to platforms that are themselves inaccessible.
II.

Availability of accessible books in higher education

30. I spoke with the University of Michigan Library back in 2005 (before it established the
HathiTrust). At that time, it had already taken proactive steps to make its digital collections
accessible to users with print disabilities. Even in its early incarnation, the University of
Michigan Library’s accessible book platform was already enabling students and scholars with
print disabilities to make unprecedented and meaningful use of the library’s vast collection.
31. Since then, I have had the opportunity to review a number of the digital books in the
HDL and to discuss the technical specifications of these scans with personnel from the

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University of Michigan Library. The HDL scans are high resolution images that have been
digitized using the most sophisticated OCR/OSR software I have ever encountered. Although
images are not described and tables are not tagged, the table text is present, and the scans include
the vast majority of metadata necessary to make them fully accessible. They can be navigated by
chapter, page, line, and character. My understanding is that the collection encompasses close to
ten million books.
32. Today, as when I was a graduate student, it is virtually impossible for blind students to
conduct library research. A university’s disability student services office (DSS) is responsible
for scanning print materials and converting them into accessible digital copies for blind students,
but the vast majority of these offices will only provide the works listed on the students’ syllabi.
They simply do not have the resources to create copies of books that are not required reading,
and certainly not do so in a timely manner. As a practical matter, this means it is impossible for
blind students to conduct independent library research. Even when a student switches classes or
a professor adds a reading to the syllabus after the fact, DSS offices are often overwhelmed and
unable to fill the requests. It may take weeks or even months for the student to receive the
scanned materials.
33. The quality of the copies made by the DSS offices varies substantially from university to
university. In the vast majority of cases, the scans will only be run through very basic OCR
software, without any of the structural recognition in the HDL scans.
34. Even more significant, indexes and tables of contents are not available in an accessible
format in almost any university library. Thus, blind students cannot view the index or table of
contents of a book to see if it contains relevant information. In the HDL, most of the tables of
contents have been manually tagged, allowing blind students to recognize them and navigate to

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them with a screen reader the way a sighted person would open the book and flip to the table of
contents.
35. At the universities with the best DSS offices, a graduate student may be able to provide a
list of materials for research that the office then will have the capacity to digitize. The office,
however, is limited to the books the student initially identifies as relevant. Blind students cannot
do what sighted students do, that is, browse through many books to find the chapters or sections
that are relevant.
36. At the vast majority of universities, where the DSS offices do not have the capacity to
honor requests for research materials, a blind student’s only option is to use a scanner in the
library to scan individual books of possible interest one page at a time, listening to each, until he
or she finds the tables of contents. It is an impossible task for a blind student to use a library in
this way; the time it would take to complete this process prohibits blind students from
completing any library research at a pace at which they can compete with their sighted peers.
37. Besides universities’ DSS offices, the only accessible digital books available are those
available for purchase as iBooks or Blio books, and the collections of Learning Ally, Bookshare,
and the National Library Service for the Blind and Physically Handicapped (NLS). Bookshare is
an initiative of the non-profit organization Benetech® that creates accessible copies of popular
digital books and academic textbooks on an ad-hoc basis for people with print disabilities at no
cost. NLS is an affiliate of the Library of Congress.
38. From my experience with Learning Ally, I know that each of these entities has a very
limited capacity to make new books. Further, Learning Ally and the NLS focus their limited
resources on particular titles with the greatest appeal. NLS focuses on novels and other current
popular works. Learning Ally and Bookshare place an emphasis on K-12 education. Although

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they do digitize some books for higher education, both have very limited budgets. Their
collections therefore are significantly different than the HDL, which naturally has an academic
focus. Learning Ally has approximately 70,000 titles in its collection, Bookshare has
approximately 150,000 titles, and the NLS has approximately 20,000 titles. These include many
that overlap. In total these organizations have approximately 200,000 titles available to blind
readers, while the HDL has ten million.
39. The AccessText Network, a membership exchange network that is intended to facilitate
and support sharing of textbooks for students with diagnosed print-related disabilities, has had
limited success and has only focused on textbooks identified in the syllabi of students. The
Network is intended to connect DSS offices directly with publishers to receive electronic files
and facilitate the sharing of scanned copies between DSS offices at different universities. As an
initial matter, the program involves voluntary participation and neither have publishers joined as
expected), nor have DSS offices shared their files at the rates the founders of the network had
hoped. Further, the network does not have a quality control mechanism to ensure that texts
scanned by different DSS offices have the necessary structure and content. In addition, it is
limited to textbooks and required items in syllabi, and therefore does not include the vast
majority of titles available in a university library. Finally, the Access Text network was
established because there was deemed to be no meaningful market in the blind and print-disabled
community. That publishers are expected to give away the electronic files for free demonstrates
that those involved do not believe there is any market for accessible books created for the blind.
40. Today, for scholars and students with print disabilities, the best promise of meaningful
access to an academic library exists at the University of Michigan through the HDL. It is the
kind of access, at the minimum, that should be available to all in the academy.

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History of failed attempts to achieve market-based access to digital text for blind
readers

41. Learning Ally struggles to find charitable funding because there simply is no market for
accessible books for the blind. Learning Ally, Bookshare, and the NLS exist because of this
market failure.
42. In 2007, I attended a presentation at the Annual International Technology & Persons with
Disabilities Conference at California State University, Northridge, at which the Association of
American Publishers announced that it had conducted a study and determined that there was no
exploitable market for the creation of accessible print materials for the blind.
43. Authors and publishers have not only ignored accessibility concerns related to digital
texts, but actively worked to prevent the market from reaching the blind. When Microsoft created
the first commercially available e-reader device in the late 1990’s, Microsoft and its competitors,
Adobe, Gem Star, Sony, and others, ignored persons who are blind or print disabled. They did
not build in any accessibility features that a blind person could use. While the underlying
content was accessible, the user interfaces did not cater to the disabled community.
44. All of these companies indicated that the effort to make the products accessible did not
justify the return on investment. From contemporaneous discussions with persons in charge of
the various e-book programs or in charge of accessibility at each of these companies I learned
that the choice to exclude the blind to preserve anti-piracy software was a deliberate decision.
They consciously decided that the work to modify software to make it accessible to the blind was
not economically worthwhile in light of the perceived small incremental addition of the blind to
the market. They recognized that people with disabilities would be left out, but they were not
willing to develop mechanisms for the blind to access the underlying information.

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45. This trend has continued. The development of popular e-book platforms that are
inaccessible, like the Amazon Kindle and the Barnes & Noble Nook, demonstrates that tech
companies and publishers do not believe that there is sufficient economic benefit from making
accessible books, or at least that their perceived concerns about possible piracy outweigh, from a
business perspective, any monetary or societal benefits from creating accessible books.
46. Indeed, I, along with representatives from the National Federation of the Blind attempted
to lobby Amazon to make the Kindle accessible, but encountered opposition from copyright
owners and their allies. We met with representatives from Amazon, presented statistics
concerning the market for talking e-books, and demonstrated the minimal cost associated with
making both the text of the books and the menus on the Kindle accessible for people with print
disabilities. But, when Amazon announced that it had released the Kindle 2 with a text-tospeech function, the Authors Guild actively opposed Amazon’s policy, and Amazon capitulated,
allowing individual publishers to turn off text-to-speech on the Kindle for, at their selection, all
or some of their booklist.
47. Further, even when Amazon activated the text to speech function on the Kindle, it only
worked for the text of the book, not the menus. Blind users therefore cannot effectively use a
Kindle book. Amazon’s failure to make these minimal changes in its platform demonstrates that
it does not consider the blind to be a significant market.
48. New books could be made accessible with little expense to publishers. All new books
are created digitally. However, the design software commonly used by publishers takes the
accessible word processing files submitted by authors and converts them into an inaccessible
format.

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49. Because of the DAISY standards and because of partnerships, we have made some
progress in building accessibility into new e-books. Adobe Indesign 6, the premier electronic
publishing design software, exports into EPUB 3, which makes the basic text accessible. But,
these new EPUB materials may still be made inaccessible if they are transformed for use with
inaccessible platforms, such as those used on the Amazon Kindle or the Barnes and Noble Nook.
50. Given the lack of a market in the blindness community even for new popular books, and
the publishers and technology companies’ persistent refusal to make their products accessible to
the blind, the access problems faced by blind readers with respect to academic library collections
are unlikely to ever be solved unless the HathiTrust is permitted to continue providing accessible
digital versions of the books in the university libraries’ collections.
Conclusion
51. Based on the facts set forth above, and my experience and expertise in providing
accessible books for the blind, it is my view that the HDL represents an unparalleled opportunity
to achieve true equality in higher education for blind and print-disabled students and scholars;
and that the opportunity to participate in education on a basis of true equality is very unlikely to
arise again if the blind are denied access to the HDL.

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

Dated: June 28, 2012
________________________________
George Kerscher

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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 JAMES FRUCHTERMAN
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
I, James Fruchterman, do hereby declare that:
Background and Qualifications
1. I am over eighteen years old and am competent to make this declaration.
2. I have attached here as Exhibit A a current version of my curriculum vitae.
3. Currently, I serve as Founder and Chief Executive Officer of Benetech®, a non-profit
dedicated to creating new technology solutions that serve humanity and empower people to
improve their lives.
4. In 1980 I earned a B.S. in Engineering and an M.S. in Applied Physics from California
Institute of Technology.
5. I co-founded Calera Recognition Systems in 1982. Calera developed optical character
recognition (OCR) technology that allowed computers to read virtually all printed text.
6. In 1989, I founded Arkenstone, a nonprofit social enterprise, that produced reading
machines for the disabled community based on the Calera technology. The Arkenstone product
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line was sold in 2000 and the resulting capital funded the next phase of Arkenstone under its new
name, Benetech. I have been the CEO of Benetech/Arkenstone since 1989.
7. I have served on three U.S. federal government advisory committees for disability issues:
the Section 255 Telecommunications Access Advisory Committee, the Section 508 Electronic
Information and Technology Access Advisory Committee, and the Advisory Commission on
Accessible Instructional Materials in Postsecondary Education for Students with Disabilities.
8. I have received numerous other awards and recognition for my work making print
materials accessible to the blind and print disabled. In 2006 I received a MacArthur Fellowship.
I was named an Outstanding Social Entrepreneur in 2003 by the Schwab Foundation and have
regularly participated in the World Economic Forum Annual Meetings in Davos, Switzerland.
Benetech received the Skoll Award for Social Entrepreneurship under my leadership. I also
received the Robert F. Bray Award from the American Council of the Blind, and the American
Library Association’s Francis Joseph Campbell Award in recognition of my successful efforts to
make literary works more accessible to people who are blind or visually impaired.
Opinions
9. Having reviewed Daniel Clancy’s description of the Google Books project and the
HathiTrust website, it is my opinion that the HathiTrust provides the best opportunity blind
students will ever have to access a comprehensive digital library of university collections.
10. Based on my experience with the Bookshare® online library for people with print
disabilities, I believe that there is no economically feasible way to digitize the print book
collections of university libraries for use by people with print disabilities except through a
cooperative project such as the one involving Google and its partner libraries, now members of
the HathiTrust. There are no other resources available to devote to creating such a collection of

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infrequently used, old, or out-of-print academic books. Although there is a small demand for
accessible copies of some of these books, it cannot sustain a viable market that would offset the
cost of creating these copies.
11. In addition, because commercial academic publishers have been the least willing to
provide digital files to Bookshare, it is my opinion that academic works in born-digital formats
will become available to people with print disabilities much more slowly than trade publishing
titles.
Facts Relied Upon
12. One of Benetech’s primary programs is Bookshare, an online library which provides

people with print disabilities in the United States access to more than 150,000 books and 150
periodicals that can be converted to braille, large print or synthetic speech. Originally created by
a community of volunteers, Bookshare is a subscription-based service operated by Benetech.
Bookshare has the capacity to create 2,000-3,000 accessible digital books per month.
13. Bookshare texts and periodicals are organized in collections by subject area, just as they
would be in a physical library. Members can search by title, author and subject. The virtual
bookshelves at Bookshare feature a wide assortment of reading material including a broad
collection of children’s literature, titles from the New York Times bestseller list, and an array of
textbooks. Bookshare staff and volunteers take pride in making sure that the library includes
bestsellers such as the Harry Potter books which become available on Bookshare just hours after
they are released to the public. If a particular book is not yet available in the Bookshare library,
Members can submit the title to a wish list for volunteers to scan and upload to the library.

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14. Bookshare’s digital texts allow readers with print disabilities to easily navigate to specific
pages or search for keywords, making them much more usable than audio books on tape or other
media.
15. Bookshare works with state education agencies and schools to deliver digital books to
students in a timely manner. The library partners with authors and publishers who contribute
digital content with global permissions to make books available to print disabled readers
worldwide. These partnerships allow Bookshare to deliver the best quality content possible at the
lowest cost. The Bookshare library also makes extensive use of K-12 textbook files provided by
publishers using the National Instructional Materials Accessibility Standard (NIMAS), to create
high quality student-ready materials in digital audio, large print or Braille.
16. The vast majority of new books in the Bookshare collection now come directly from
publishers in digital formats such as XML. Close to 200 publishers share these digital files with
Bookshare. To make these books accessible can be done automatically in a few minutes.
Unfortunately, however, the books that are available in XML formats are heavily weighted to
trade books, including genre fiction, New York Times best sellers, romance novels, science
fiction, mysteries, political commentary, religious books, and other books with mass-market
appeal. They also typically include books published in the last ten years, since e-books have
become widely available. Publishers also have focused on digitizing only that part of their
backlist they think can sell enough books to justify the effort. In general, only those books
published in the last ten years.
17. For books that are not available in digital formats directly from the publishers, Bookshare
obtains the books in physical form and will chop, scan, OCR (optical character recognition) and
proofread them to make accessible copies. Bookshare used to do this for any books sent to it by

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members with disabilities, but Bookshare does not currently have the resources to do this kind of
labor-intensive work for books that are not directly used in the classroom, because of the
priorities of our funders.
18.

REDACTED

- CONFIDENTIAL

ATTORNEYS' EYES ONLY
19. Bookshare has shifted its energy and resources in recent years to forming agreements
with publishers to receive born-digital copies of their materials.
20. We get requests from university students and scholars to scan print books for their
research, but we are not able to fulfill these requests because we do not have the resources to
scan their books. We will only process requests for students in accredited programs in the United
States who are working toward degrees, and currently only then if the books requested are
assigned or required classroom reading. We do not have the capacity to make university library
books more generally accessible because they are rarely assigned and we do not have the
capacity to honor requests for digitization of books that a student or scholar wants to use as
background research for a research paper or article.
21. The largest part of Bookshare’s budget comes from the United States Department of
Education, which funds Bookshare’s efforts to create accessible copies books for students with
print disabilities, with the highest priority on K-12 textbooks.
22. To add accessibility features to digital files received from publishers or to scan and add
accessibility features to print works, Bookshare uses combination of volunteers, internal staff,
and paid outsourcers.
23. Bookshare’s average cost of creating an accessible book is roughly $40 per book. This
average cost includes the proofreading for scanned books and creating the metadata for all

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books, including those that provided to us in digital form. Our overall average cost per book is
much lower than our average cost for a scanned textbook, because of the large numbers of digital
books provided by publishers in high quality formats with structure (like sections, chapters,
subsections, tables of contents and the like) already included. Our average cost for a making the
text and structure of a scanned textbook accessible is over $400 per book.
24. Even once Bookshare has a scanned copy of a book, the cost of making it accessible
varies enormously based on the complexity of the layout of the books. We need to proofread the
text to ensure it is correct and books that have headers, footers, footnotes or other graphic
features that change the reading order of the page must be tagged and properly structured to
make them understandable and functional for a blind person using screen access software.
Lastly, books that have images that are important for educational purposes should have image
descriptions added, something that we don’t have the budget to create for any but the most
widely used K-12 textbooks.
25. Bookshare divides books into six levels based on their complexity. Level 1 books have
no headers, footers, or pictures. Level 2 books have headers or footers and low-level formatting,
such as chapters. Level 3 includes books that have images, footnotes, or line breaks, including
children’s chapter books, plays, and poems. Level 4 books have many images or charts, resource
listings like bibliographies, insets, many foreign language words. Level 4 includes textbooks
that are mainly text but have chapters. Level 5 books have complex layouts, including text in
margins or text printed on image backgrounds. Level 6 includes the most complicated books,
such as math or science texts, cookbooks or dictionaries.
26. The cost of making the text and structure of a scanned book for Bookshare varies by the
complexity level. Level 1 books typically cost less than $50 per book to make accessible. Level

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4 books average more than $350 per book and Level 5 and Level 6 books cost pl'Ogl'essively
more to make accessible. These costs do not include the cost of image descriptions.
27. I believe the majority of books available in a university librarywo\)ld qualify as Level 3,

4 Or 5 \lnder Bookshare's complexity classifications.
28. Bookshal'e's budget only pem1its it to add image descriptions of illustrations, graphs,

tables and other visually-oriented features to the K-12 textbooks in highest demand. In addition,
because the U.S. Department of Rclncation has made image descriptions in K-12 textbooks a
policy priority, Dookshnl'c m\)st devote a significant pOl'lion of the Department of Education
resources to adding image desCliptions to this subset of the books In its collection.
29. For the last three years, Beneteeh has employed one person whose full time job is
recruiting new publishers tQ contribute digital books to Bookshare's collection. It has been
Dooksharc:s experience that textbook publishers and commercial academic publishers are the
most reluctant to contribute to the Booksllare callection; when they do agree ta provide digital
files, they place more restrictions on our access to the files than trade publishers do.

30. 1 am not aware of a far-profit entity creating digital books frOm print books for the blind.

Dated:

f~

G/2 rrJ 2sJ /1

James Fruchtem1an

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------X
THE AUTHORS GUILD, INC., et al.,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.,
:
:
Defendants.
:
:
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Filed 06/29/12 Page 1 of 12

Index No. 11 Civ. 6351 (HB)

DECLARATION OF PAUL AIKEN
I, Paul Aiken, hereby declare as follows:
1.

I am the Executive Director of the Authors Guild, Inc. (the “Guild”), one of the

plaintiffs in the above-captioned action. I have been employed by the Guild since April 1993,
first as a staff attorney, then as Assistant Director, and finally in my current position since 1996.
I am 1985 graduate of Cornell Law School and an attorney licensed to practice in New York.
2.

I submit this declaration in support of Plaintiffs’ motion for summary judgment. I

have personal knowledge of the facts set forth in this Declaration and could testify competently
at a hearing or trial if called upon to do so.
3.

The Guild participated in bringing this lawsuit to stop the Defendant universities

and their shared digital repository HathiTrust from systematically usurping authors’ rights to
their literary properties by, among other things: (a) authorizing and participating in the unlawful
conversion of millions of copyright-protected books into machine-readable digital formats; (b)
authorizing and participating in the reproduction and distribution of those millions of unlawfully
prepared digital books; (c) taking upon themselves the right to make decisions as to appropriate
investments in technology, staff, and enforcement measures to secure those millions of

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unlawfully prepared digital books; (d) establishing rules by which Defendants would purport to
determine whether the authors of those millions of unlawfully prepared digital books should be
further deprived of their literary property rights; (e) purporting to use such rules to decide
whether authors were not findable without undue effort and therefore subject to Defendants’
“Orphan Works Program”; and (f) authorizing Google, Inc. (“Google”) to convert into machinereadable digital formats, then reproduce, store, and profit from, millions of copyright-protected
books, all while Defendants avoided financial responsibility for their unlawful actions through
their sovereign immunity status.
4.

The Guild participated in bringing this lawsuit for another vital reason: to reduce

or eliminate the risk of catastrophic economic harm -- a “Napster event” (in which digital
privacy and distribution of copyrighted works became rampant) -- posed by Defendants’ storage
in online databases, offline databases, and backup tapes tens of millions of unauthorized
reproductions of copyright-protected books, by seeking an order requiring Defendants to take the
unlawfully created digital books offline until Congress takes appropriate action regarding the
digitized literary works.
The Authors Guild
5.

The Guild and its predecessor organization, the Authors League of America (the

“League”), have been leading advocates for authors’ copyright and contractual interests since the
League’s founding in 1912. With more than 8,500 published authors as members, the Guild is
the largest advocacy group for book authors in the United States. Our members represent the
broad sweep of American authorship, including literary and genre fiction, nonfiction, trade,
academic, and children’s book authors, textbook authors, freelance journalists, and poets. Guild
members have won countless honors and all major literary awards. (Every American winner of

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the Nobel Prize for Literature was a Guild members.) Our members include published authors in
38 countries.
6.

The Guild had its beginnings as the Authors League of America, which was

founded in 1912 by a group of book authors (including Theodore Roosevelt, who served as the
League’s founding vice-president), short story writers, freelance journalists, and dramatists. In
the 1920s, the League broke into two groups: the Guild and the Dramatists Guild of America.
7.

Virtually since the day it was founded, the Guild has been a leading advocate for

published authors in the United States, pursuing its mission of promoting fair book and freelance
journalism contracts, effective copyright protection and freedom of expression. As part of that
mission, the Guild has participated in litigation, generally as amicus curaie, but occasionally as a
direct party to legal actions. The activities of the Guild include reviewing members’ publishing
and agency contracts; intervening in disputes involving authors’ rights; providing advice to
members regarding developments in the law and publishing industry that affect their rights; and
advocating regarding legislation in matters affecting copyright, freedom of expression, taxation
and other issues of concern to professional writers.
The Challenges Facing Print Media
8.

Never in the Guild’s long history has its straightforward mission – to maintain

writing as a viable livelihood – been so daunting. The digital environment has been brutal for
print media. The newspaper industry has been devastated, with many publication shuttered and
many more on the brink. The magazine industry has not fared much better, as venerable
publications shrink in size and ambition. The loss to our society from the collapse of these
industries is immeasurable.

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9.

Filed 06/29/12 Page 4 of 12

Although the book industry has fared somewhat better than our colleagues in print

media, our industry is challenged as well. Finding a sustainable business model for creative
work in digital form seems nearly impossible: if piracy doesn’t get you, the aggregators will. In
this complex, shifting environment, in which technology has the ability to both foster and
decimate markets within months, it is crucial that authors have a place at the table when
institutions seek to rewrite the rules governing the uncompensated uses of their literary
properties, and whether and under what conditions those properties will be placed at digital risk.
The Google Books Case
10.

Because of its potential effects on our members’ and the Guild’s own copyright

interests, the Guild followed with great interest and concern Google’s 2004 announcement of its
Google Library Project. The Guild was particularly concerned by Google’s December 14, 2004,
announcement that it was working with major academic institutions in the United States to
digitize millions of books, including books protected by copyright.
11.

The Guild soon learned that the University of Michigan, a defendant in this case,

was allowing Google to digitize vast numbers of books from its libraries. The Guild obtained a
copy of the Cooperative Agreement between Google and the University of Michigan, confirming
the “win-win” arrangement the two entities had reached: Michigan would allow Google to
convert books from its libraries’ vast collections into digital form and retain a digital copy of
each book it converted, so long as Google provided the University of Michigan with an
unauthorized digital copy of each book Google converted to digital form. The Cooperative
Agreement made no mention of making efforts to seek permission from authors or their licensees
to conduct these digital conversion and reproduction activities.

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12.

Filed 06/29/12 Page 5 of 12

On September 20, 2005, representative plaintiffs and the Guild filed a class action

lawsuit against Google for copyright infringement arising from its program to convert into digital
format millions of copyright-protected books as part of the Google Library Project, and then
display “snippets” from those books at Google’s web site. See The Authors Guild, Inc. et al. v.
Google Inc., No. 05 Civ. 8136 (S.D.N.Y.) (the “Google Books case”). At that time, the Guild
elected to take legal action against only Google, which was providing the technology, money,
and labor to convert the books into machine-readable formats, and not against any of Google’s
other library partners.
13.

In the spring of 2006, the Guild and Google had their first settlement meeting. By

that fall, settlement negotiations formally began between and among Google, book publishers,
and the Guild. Approximately two years later, on October 28, 2008, the parties filed a motion
for preliminary approval of a settlement agreement reached with Google, which motion Judge
John E. Sprizzo granted on November 17, 2008. On November 13, 2009, the parties executed an
Amended Settlement Agreement (the “ASA”) and filed a motion for final approval. A copy of
the ASA is attached as Exhibit A hereto. The ASA was preliminarily approved on November 19,
2009, by Judge Chin, who assumed responsibility for the Google Books case after Judge
Sprizzo’s passing.
The Amended Settlement Agreement
14.

Several features of the ASA are critically important to the instant litigation.

15.

First, the ASA provided a mechanism to compensate the millions of authors

whose copyrighted works had been digitized by Google without authorization. Under the ASA,
the class of affected authors and rightsholders would have granted a license to Google to digitize
works and sometimes sell, display, and make certain non-display uses of the works it had

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scanned. The ASA expressly authorized Google and its partner libraries (which would have
included the University of Michigan and other Defendants in this litigation) to index the contents
of the digitized works for search purposes and to allow researchers to conduct “non-consumptive
research” using the digitized corpus. The ASA would have covered both in-print and out-ofprint works, including so-called “orphan works.” In exchange for these and other rights that
would have been granted as part of the ASA, Google agreed to pay $45 million into a settlement
fund to make cash payments to rightsholders – at least $60 per principal work. The ASA would
also have provided a revenue share in which rightsholders would have received most of the
subscription, sales, reproduction, and advertising revenue generated by the digitized books.
16.

Second, the ASA included a comprehensive security protocol that Google and any

partner institutions would be required to follow if they were to store digital copies of the
copyright-protected works obtained through the Google Library Project. I was directly involved
in some of the negotiations that led to the security protocols ultimately agreed to and
incorporated into the ASA. Those protocols included contractually binding security
requirements, subject to audit procedures and contractually enforceable financial penalties, to
help protect against the risk of catastrophic loss of the digital book databases.
17.

On March 22, 2011, the court declined to approve the ASA. An aspect of the

ASA that particularly concerned Judge Chin was the ASA’s treatment of “orphan works” –
books that are still in-copyright but whose author or rightsholder cannot be located. Judge Chin
ruled that “the establishment of a mechanism for exploiting unclaimed books is a matter more
suited for Congress than this Court. . . . The questions of who should be entrusted with
guardianship over orphan books, under what terms, and with what safeguards are matters more

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appropriately decided by Congress than through an agreement among private, self-interested
parties.” The Authors Guild, Inc. v. Google Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011).
Orphan Works Project
18.

Fewer than two months after Judge Chin rejected the ASA, on or about May 16,

2011, I heard the stunning news that the University of Michigan was launching its own “Orphan
Works Project” – an initiative that purported to seek to identify so-called orphans among the
copyright-protected works that had been digitized through the Google Library Project and were
being stored in the HathiTrust Digital Library. It was my understanding that a work identified as
an “orphan” by the project would be made available for the university’s students, professors, and
other users to view online, print, and download for free.
19.

Incredibly, the procedures for determining whether or not the author of a

copyright-protected book could be found, were unilaterally established by the University of
Michigan. Moreover, the University of Michigan took unto itself the task of implementing the
rules it had devised. The result of this was that if the University of Michigan determined a book
was an orphan, as the University of Michigan itself defined that term, then the University of
Michigan would be the beneficiary, reproducing and distributing the copyright-protected work
without limit to students and faculty at the University of Michigan’s campuses. It seemed a
recipe for disaster, likely to deprive countless authors of their literary property rights.
20.

In July and August 2011, other universities, including Defendants the University

of California, the University of Wisconsin and Cornell University, announced their participation
in the Orphan Works Project and their intent to make works in their collections identified as
“orphans” through the rules devised, implemented, and overseen by the University of Michigan,
available to their respective students, faculty and library visitors.

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The Instant Lawsuit
21.

In light of Judge Chin’s rejection of the ASA, the breakdown in settlement talks

with Google, and the announcement of the Orphan Works Project, the Guild filed the instant
action to enjoin Defendants from further infringing and jeopardizing authors’ rights by scanning,
storing, and using copyright-protected books without permission or accountability, as well as to
put an end to the Orphan Works Project.
22.

We filed the initial complaint on September 12, 2011. Since the books scanned as

part of the Google Library Project and the purported orphan works that Defendants were
threatening to distribute affected the rights of authors worldwide, authors’ rights associations
based in Australia (Australian Society of Authors) and Quebec (UNEQ), as well as eight
individual authors from around the world joined the Guild as plaintiffs in the lawsuit.
23.

Due in part to publicity surrounding the filing of the lawsuit, the Guild was able to

identify several authors and copyright holders whose works were scheduled to become available
for “full view” as part of the Orphan Works Project.
24.

I was personally able to locate one such author, J.R. Salamanca, simply by

searching “book author salamanca” at Google’s search engine. Within minutes I was in contact
with the wife of John White, Mr. Salamanca’s literary agent. She confirmed that her husband
represented Mr. Salamanca, who was alive and living in Maryland. In a conversation later that
day, Mr. White told me that Mr. Salamanca’s works were certainly not “orphaned,” and that Mr.
White had, in fact, signed a contract earlier that month to publish an e-book edition of one of Mr.
Salamanca’s novels. I understand that Mr. White is submitting a declaration which describes this
in more detail.

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25.

Filed 06/29/12 Page 9 of 12

On October 5, 2011, the Guild filed a First Amended Complaint, adding as

plaintiffs Mr. Salamanca and the Authors League Fund, as well as authors’ rights groups in the
United Kingdom (ALCS), Sweden (SFF), Norway (NFF), and Canada (TWUC), and three
additional individual authors.
The Works at Issue
26.

In addition to filing this lawsuit to protect the rights of its members whose

copyrighted works have been digitized and are being used by Defendants without authorization
(the “Member Works”), the Guild itself owns the copyrights in and to several works that were
scanned and incorporated into HathiTrust without the AG’s knowledge or consent. Attached as
Exhibit B is a schedule of works whose copyrights are owned by the Guild and have been
infringed by Defendants ( the “AG Works”). Attached as Exhibit C is documentation evidencing
the transfer of the relevant copyrights from each respective author to the Guild. A copyright
registration certificate for each AG Work is attached hereto as Exhibit D.
Harm Resulting From Defendants’ Use of the Works
27.

I have reviewed the declarations of several individual authors who are plaintiffs in

this litigation, including the declarations of Pat Cummings, T.J. Stiles, James Shapiro, and
Roxana Robinson, all of whom are members of the Guild. I believe that the works written by
those authors provide a fair sampling of the types of works authored by members of the Guild.
28.

I agree with and incorporate by reference the description in those declarations of

the various harms and potential harms that result from Defendants’ unauthorized digitization and
use of copyrighted works. Those descriptions need not be repeated here in full, but can be
summarized as follows.

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29.

Filed 06/29/12 Page 10 of 12

First, each digital copy of a Member Work or AG Work that is created by

Defendants without purchase or license represents a lost sale to the corresponding author or
rightsholder. Defendants could have purchased a copy, but instead had it scanned without
compensating the rightsholder.
30.

Second, Defendants’ storage of the Member Works and AG Works in an online

digital repository exposes that property to security risks for which the rightsholders receive no
commensurate remuneration. Unauthorized access to copyrighted books leading to widespread
piracy would gravely affect the market for those works. Professor Benjamin Edelman’s expert
report contains additional detail concerning the security risks posed by Defendants’ unauthorized
activities.
31.

Third, Defendants’ various uses of the Member Works and AG Works undermine

licensing opportunities for rightsholders. For example, rightsholders routinely grant online
distributors a license to index their books and make them searchable as part of a commercial
arrangement intended to promote book sales. Defendants do the same thing, but without a
license and not as part of an effort to sell the books and provide revenue to the author.
Defendants also permit the books to be used for non-consumptive research, an emerging field
that represents another potential licensing stream for authors.
32.

Fourth, Defendants’ mass digitization and orphan works programs undercut

opportunities for authors to generate royalty streams by entering into collective licensing
agreements – a topic addressed in more detail by in Professor Daniel Gervais’s expert report.
For example, I am aware of existing or proposed agreements in Sweden and Norway entered into
by authors’ rights organizations, on the one hand, and the national libraries of those countries, on
the other hand, to digitize, archive, and make various uses of their national library collections.

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Unlike Defendants, the libraries in those countries agreed to compensate authors and
rightsholders for the right to use their works. Had the ASA been approved, it would have
provided the same function.
33.

Fifth, making books available through the Orphan Works Program will directly

undermine efforts to revive out-of-print books and will affect future book sales. It is impossible
to know what is going on with authors’ and their representatives’ efforts to republish their outof-print works if one never asks, as demonstrated by the story of J.R. Salamanca. Defendants
believed the rights to Mr. Salamanca’s books were unclaimed, when in fact Mr. Salamanca’s
agent was negotiating a contract to make one of his novel’s available as an e-book. The Guild
itself has operated the Backinprint.com program, which now makes more than 1,400 formerly
out-of-print works available through online bookstores and the nation’s largest book wholesaler.
Defendants should simply not be permitted to usurp an author’s decision to revive an older work.
34.

In short, Defendants’ activities have harmed or have the potential to cause

enormous harm to the rights of authors.

[THIS SPACE INTENTIONALLY LEFT BLANK]

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I declare under penalty of perjury that the foregoing is true and correct
COITee!.
Dated:

New York, New York
York, New York
28_ 201 2
June 28 2012

~KEN

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

Filed 06/29/12 Page 1 of 19

Index No. 11 Civ. 6351 (HB)

DECLARATION OF T.J. STILES
I, T. J. Stiles, hereby declare as follows:
1.

I am one of the plaintiffs in the above-captioned action and submit this

declaration in support of Plaintiffs’ motion for summary judgment.
2.

I am the author of numerous books about American history. I have made my

living as a full-time writer for over ten years, and I put tremendous effort, care, and creativity
into my works, be they full-length biographies or short-form pieces for the New York Times Book
Review, the Washington Post, the San Francisco Chronicle, the Minneapolis Star-Tribune,
Salon.com, The Atlantic online, or the New York Observer. Although my writings are based on
intensive historical research and are considered scholarly in their rigor, I believe a biography to
be a creative endeavor. I approach the task of crafting a nonfiction narrative as an author of a
novel might, making conscious artistic decisions about style, narrative flow, pacing, perspective,
thematic development, and description to write works that are as literary as they are scholarly. I
endeavor to create vivid, fully realized worlds on the page that shed light on the human
condition.

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3.

Filed 06/29/12 Page 2 of 19

My first biography, Jesse James: Last Rebel of the Civil War, (“Jesse James”)

was named a New York Times Notable Book, a finalist for the Los Angeles Times Book Prize in
Biography, one of the Five Best Books of the Year by the London Sunday Times, an American
Library Association Notable Book, one of the New York Public Library’s 25 Books to
Remember, and a Best Book of the Year by Library Journal, the Chicago Sun-Times, the
Cleveland Plain Dealer, Bookpage, and the London Independent. It also won the English
Speaking Union's Ambassador Book Award, the Peter Seaborg Award for Civil War
Scholarship, the James-Younger Gang's Perry Award, and the Friends of the James Farm's John
Newman Edwards Award.
4.

My second biography, The First Tycoon: The Epic Life of Cornelius Vanderbilt,

won the 2010 Pulitzer Prize for Biography and the 2009 National Book Award for Nonfiction. It
was also named a New York Times Notable Book and one of the best books of the year by The
New Yorker, the Financial Times, the Christian Science Monitor, the Boston Globe, the
Philadelphia Inquirer, and other publications.
5.

I have received many honors and awards in my career. In 2011 I was named a

fellow of the John Simon Guggenheim Foundation. From 2004-05, I held the Gilder Lehrman
Fellowship in American History at the Dorothy and Lewis B. Cullman Center for Scholars and
Writers at the New York Public Library. I have also received a Distinguished Alumni Award
from Carleton College. Additionally, I am an elected member of the Society of American
Historians, sit on the Advisory Council of the Biographers’ International Organization, and have
a seat on the Board of Directors of Plaintiff The Authors Guild. I am also a member of the
American Historical Association, the Organization of American Historians and the Western
History Association.

FKKS: 460668.v1

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The Work At Issue
6.

I am the sole author and copyright holder of Jesse James, which was registered

with the U.S. Copyright Office on or about February 4, 2002 and assigned Registration Number
TX0005703845. A true and correct copy of the copyright registration is attached hereto as
Exhibit A.
7.

Although I have licensed to my publisher certain exclusive rights in connection

with the commercial exploitation of Jesse James, I did so in exchange for the payment of
royalties and I remain the legal and/or beneficial owner of all rights in and to Jesse James. I
never assigned to any third party the copyright to Jesse James.
8.

Jesse James was first published in hardcover format in 2002 by Alfred A. Knopf,

Inc., and in paperback form in 2003 by Vintage Books. It is a nonfiction biography that is, as of
this writing, available for sale in paperback and electronic formats, including on the Amazon
Kindle, the Barnes & Noble Nook, and others. Jesse James was published in at least three
countries, including the United States, the United Kingdom and Italy, where it was translated to
and published in Italian.
Unauthorized Uses Of My Work
9.

It has come to my attention that a print copy of Jesse James was copied without

my permission when it was digitized by one the defendant universities (collectively referred to
herein along with the HathiTrust as the “Defendants”) in partnership with Google, as part of the
HathiTrust and Google Books projects. This digitization took place without my knowledge,
consent, or approval. I did not authorize Google, HathiTrust, or any of the university defendants

FKKS: 460668.v1

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to digitize or make any other use of Jesse James. To date, I have received no compensation of
any kind for the Defendants’ digitization and various uses of this work.

Harm Resulting From Defendants’ Use Of My Work
10.

As an author who depends on the value of my writings to earn a living, I brought

this action because the Defendants’ unauthorized digitization and use of Jesse James has harmed
or threatens to harm me in a number of ways.
11.

First, each digital copy of Jesse James that Defendants created without

authorization represents a lost sale. Simply put, Defendants could have purchased a digital copy
of Jesse James (which is readily available through a number of commercial outlets) rather than
scanning a print copy to create an unauthorized digital version, whether for preservation, archival
or any other purpose. Just as libraries purchase or otherwise lawfully acquire print copies of
books for their physical archives, libraries should purchase digital copies for their digital
archives.
12.

I authorized my publisher to digitize and sell Jesse James as an electronic book in

exchange for 25% of the amount the publisher receives from the sale of the book, as shown on
the agreement attached hereto as Exhibit B. By scanning Jesse James, Defendants avoided
having to pay the retail cost of Jesse James which, according to a recent print-out from
Amazon.com attached hereto as Exhibit C, is approximately $13.00 per copy. Thus, Defendants
deprived me of a sale and the revenue that would have resulted from it. Attached hereto as
Exhibit D is a copy of the most recent royalty statement I received for Jesse James, which shows
that over 650 copies of the electronic book have been sold, generating almost $1,500 in revenue
for me. To the extent that an electronic copy was not available at the time Defendants sought to

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digitize Jesse James, they could have requested a license to do so. However, no such license
ever was requested or granted.
13.

It is my understanding that Defendants make various uses of Jesse James without

permission. These unauthorized uses, both individually and in the aggregate, undermine
existing, emerging and potential markets for Jesse James. For example, I understand that
HathiTrust has a service that allows certain users to conduct so-called “non-consumptive
research” on the corpus of digital works, including my own, stored in the HathiTrust database.
From what I’ve learned about it, non-consumptive research represents a potentially exciting field
for academics and therefore an emerging licensing opportunity for authors at a time when
revenues are decreasing. Indeed, it is my understanding that the Amended Settlement
Agreement entered into by The Authors Guild and Google would have permitted the defendant
libraries to engage in non-consumptive research activities using works such as Jesse James – but
pursuant to a license that included a mechanism to compensate authors.
14.

I further understand that Defendants have made my work available for full text

searching. Again, this undermines a potential source of revenue for me and for other rights
holders. For example, my publisher has granted licenses to companies such as Amazon and
Ebrary to store a digital copy of Jesse James and allow users to search through the full text of my
work. But those uses are authorized for the purpose of driving sales of my book

as reflected

on the royalty statement. See Exhibit D at 2-3 (ebook sales) and 4 (Ebrary revenue).
15.

Moreover, as a copyright owner, I (not Defendants) should be allowed to decide

whether or not my works are copied and included in a database used for non-consumptive
research, full text search indexing or other uses. My understanding is that one of the
fundamental rights of copyright is to decide whether or not I want my work to be copied,

FKKS: 460668.v1

5

19894.300

A-218
Case 1:11-cv-06351-HB Document 83

Filed 06/29/12 Page 6 of 19

distributed or displayed. And, if I am inclined to grant permission, I should be able to negotiate
the terms thereof.
16.

Finally, by digitizing and storing Jesse James in a digital archive, Defendants

subjected, and continue to subject, Jesse James to security risks. Every digital archive runs some
risk of being accessed without authorization, and it is common knowledge that even the most
secured networks in the world have been victims of cyberattacks. Defendants made no effort
whatsoever to inform me of any security measures they may have taken, and they never sought
permission to expose Jesse James to whatever risks their system poses. Once an unauthorized,
unprotected digital version of Jesse James is released online, it becomes vulnerable to unlimited,
instantaneous copying and distribution - in other words, unstoppable piracy. Should the
Defendants’ security be compromised, it would negatively impact future sales of Jesse James
and damage my livelihood.
17.

For each of the uses above, including full text searching, digital archiving, and

non-consumptive research, Defendants are seeking to establish that as a matter of law they have
the right to use my work without my permission and without compensating me. If Defendants
are allowed to do this, there will be little to stop other people or entities from making digital
copies of copyrighted works and using them for these same (and possibly other) reasons. In
other words, if Defendants and Google can do this, what is to stop anyone else in the market
from doing the same thing and depriving me of the opportunity to exploit new potential revenue
streams?.
18.

This is a difficult and complicated period of uncertainty for the future of

publishing and professional authorship, and copyright law’s carefully-drawn incentive structure
has been jeopardized by the changing technological landscape. I, and many other authors, see

FKKS: 460668.v1

6

19894.300

A-219
Case 1:11-cv-06351-HB Document 83

Filed 06/29/12 Page 7 of 19

these new uses for books as a ray of hope and a potential revenue stream to allow authors to
continue to be compensated as traditional print publication suffers. By deciding unilaterally, on
my behalf, that I am owed nothing for these uses, Defendants cripple this hope and preempt my
rights to demand compensation for these new kinds of uses.
19.

It is my hope that this action will help ensure that future generations of authors

will continue to have the financial incentive to write books.
I declare under penalty of perjury that the foregoing is true and correct.
Dated: New York, New York
June __, 2012
_________________________________
T.J. STILES

FKKS: 460668.v1

7

19894.300

A-220
Case 1:11-cv-06351-HB Document 83

Filed 06/29/12 Page 8 of 19

EXHIBIT A

A-221
Case 1:11-cv-06351-HB Document 83

Filed 06/29/12 Page 9 of 19

C
F

!

,

» Cfl{Hl~.;e,

FORMTX

;lhl Oific(;

UNITED STATES COPYRIGHT OFFICE

""
ri

~

tlls Cc,py-

REr·---·-·-···,," ._-

For a Nondramatic literary Work

TX 5-703-845

IIII11I11I11III

DO NOT WRITE ABOVE THIS LINE. IF YOU NEED MORE SPACE. USE A SEPARATE CONTINUATION SHEET.

1

TITLE OF THIS WORK ...

JESSE JAMES: Last Rebel of the Civil War
PREVIOUS OR ALTERNATIVE TITLES ...
PUBLICATION AS A CONTRIBUTION Ii thi~ work \.\o"as publh,hed as a C~lntribution to ~ periodic.al, serial. or c,-,lIechon. givt!' mtormc\tion dbout
collective work in which the contribution dppt'<1red.
Title of Collective Work?

If published in it perinJir.ll or

2

sl~ri~d

giH'

a 'work made
for hire- is
generally lhe
employer, not
the employee
(see instructions). For any
part of thIs
work that was
-made for hirecheck ·Yes· in
the space
pro\lided, give
the employer

~~r:~~~or

Was this contribution to the work a

AUTHOR'S NATIONALITY OR DOMICILE

WAS THIS AUTHOR'S CO!,>;TRIBUTION TO

"'work made for hire"?

Name of Count/)'
COt"
OR
.1 I/("n (l

THE WORK

:::lYes
:

{

f" USA

Domiciled in. __ ~

Anonymou:-;:
.:reat~

[l Yt'!>

rS(,lIdonym()us~

_"____________

NATURE OF AUTHORSHIP Bridly describe nature of materi.1i

,-' 'r't~S

V
V'I

No

If the answer to either
of these questions IS
'Yes: see detaIled

t\:n

lnstructlOflS

.,

by this author in which copyright is claimed .....

Entire text excluding bi io::f quuto::s frulll uther soun;es; all photographs are preexisiting

b

NAME OF AUTHOR...

DATES OF BIRTH AND DEATH
Year Bom ...
Year Died ...

\-Vas this contribution tu the work a
"wor(... madl' for hire"?

:J Yes

WAS THIS AUTHOR'S CONTRIBUTION TO
THE WORK
If the answer to either

AUTHOR'S NATIONALITY OR DOMICILE
Name of Country

OR{ Clti7~~n

of ...- - - - - - - - - -.-'"

"-

NATURE OF AUTHORSHIP Briefly

d~>~nilx.'

NAME OF AUTHOR ...

Was this (ontributilln tu the \vorl
·"",·ork. nlLldC' for hi [("'?

was prepared}

~

that parl. and
leave the
space for dates
of birth and
death blank.

a

<l

Name of Country

~·IIi.tt'n o f "

lJ No

?~:~·~e~U~!~~~~iS

Yes

L J No

Instructions.

DATES OF BIRTH AND DEATH
Year Born.
Year Died.

_ . _________ ~

P!loeUdllnvml,lU~

b

YEAR IN WHICH CREATION OF THIS
.
WORK WAS COMPLETED Thi.inlormation

~

Yes

~Q

L N ...l

of these questions IS

-Yes.- see detailed
InsrruchorJs.

~Year ~~~It~s~~en

DATE AND NATION OF FIRST PUBLICATION OF THIS PARTICULAR WORK
Completethi,information

~aNsl:!:-~~:r~ed.

Month"

Septem~e.r_ .. _____ .

COPYRIGHT CLAIJ\.IANT(S) Name and
the author given in space 2. T

~ddn.""'''' mll:';!

t7

_. _ Vea'"

fQO_2__

<III

Nation

.,

bt.' given even if tht" clitimant

I.S

the

bamt" .1':>
UJ

T.I. Stiles

",,,

c/o Scovil, Chichak, Galen Literary Agency, 381 Park Ave. South
_N~ew~Yuo~r~k.~N~Y~I~OO~I~6L_

Day" _ ..

USA

'!!i&,;"\ft\;~~

beIo<e oompleting
this space

?

I

NATURE OF AUTHORS HlP [hiL'lly describQ n.lture of materidl CIl'tlkJ by this cluthor in \vhich copyright is claimed ....

... 2002

4

[l y"s

Anonymnu~?

Pllmirilt>d in"'_

:::J No

Yt's

~

WAS THIS AUTHOR'S CONTRIBUTION TO
THE \VORK
If the answer to Bither

AUTHOR'S NATIONALITY OR DOMICILE

OR{

Yes

U

n:tture ot rnateriall,·rc<1tL'd by this author in \vhich copyright is clillmed ...

<: _______________________________________________________________________

whom the work

An(lnymou~?

Pseudonymous?

- - - ------

Domiciled in ...
__________ _

01>:0

as -Author- of

SeeinstnJdioo.

On Pages ..

DATES OF BIRTH AND DEATH
Year Died ...
Yeo, !lorn'"

NAME OF AUTHOR ...

NOTE

•

Issue Date ....

a T.l. Stiles

"No

. ~:d~;u\~~;:~i

Number ....

VolurTltc>'"

th(~

___________________________________4~~

TRANSFER If the daimant(s) named here in SpclCC 4 is (are) different from the author(s) named in
space 2, give a brief statement of how thE" clolimant(s) obtained (twner~hip of IhE" copyright. '"

ONE DEPOSIT RECEIVED

~g
I!!~

b~

TWO DEPOSITS RECEIVED

FEB 0 4 2003

~~ FUNDS RECEIVED

o

MORE ON BACK...

. Complete

all applicable spaces (numbers 5-9) on the reverse SIde of this page.
• Sign the form at line 8.

• See detailed instructions.

DON

V.

Page 1 of

pages

A-222
Case 1:11-cv-06351-HB Document 83

Filed 06/29/12 Page 10 of 19
FORMTX
CHECKED BY

FOR
COPYRIGHT
OFFICE
USE
ONLY

CORRESPONDENCE

D Yes

DO NOT WRITE ABOVE THIS LINE. IF YOU NEED MORE SPACE, USE A SEPARATE CONTINUATION SHEET.
PREVIOUS REGISTRATION HilS rt>gi"trillion for this work, or for Clll. t'arlier vt.~rsj(m ot thio;. work, aJrL'.1dy Noell. m,lde in the Copyright Office?
C Yes ~ No If your answt.'r is "Yt's," why IS ilnothc.·r n.'gistr<ltion lxing sO,lght? (Check apprnpriiltt.· bmL)'"

5

0 This is the first published edition of.a work previou.,ly ft:'gi'lotered in unpublished form.

A.

b. 0 This is t.ht' first application submitt('ct by this author as copyright claimant.

c. 0 This is d changed version Llf tht'

l-....

ork, as shown by sp'-lee 6 on tlus appllcahon.

If your ans'...·er is "Ye5s gin': Previous Registration Number ....

Year of Registration ....

t<

DERIVATIVE WORK OR COMPILATION
Preexisting Material Idt>ntify any preexisting work or \.... orks that this work is

ba~e,j

on

(It

incorpor<lt\!~ .

a

."

Brief quotes from other sources; all photographs are preexisiting

6

See Instructions
belore completing

Material Added to This Work Give a brief, gener.l!

stdtemt.~nt ~lf

tht:' rnatt'riai that has been added t\l this wllck ~Hld in whi..:h copyright i~ c1dimeu ....

bthlsspace.

Entire text excluding brief quotes from other sources; all photographs are preexisiting

DEPOSIT ACCOUNT It the registrLltion tct.~ is to be ChMgt.~d to a Deposit Account est(lblislwd in the Copyright Ofnce, f!;il'(I name and number of Account
Account Number'"

Name'"

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;.::::

RRESPONDENCE Giv(> name and address to which corrcsp0ndC'nct.' about this apphc.ltlon 5hould be sent.

N,lH'lC/ Address! Apt/City/StLltC/ZIP ....

Rebecca Heisman, Alfred A. Knopf
~745 Broadway, 3rd Floor
New York, NY 10019
Area CXlde

Email ....

a

19429

and daytime telephone number

~

[phone]

Fax number ~

[e-mail]

{--l

CERTIFICATION· J, th(' undecsigllt"d, hereby Ct~rtify tll.Jt I anI tilt.'
Chel'k onlv one....

of

IUf.

r

duthl)r

CJ ownt;'r of exdu--ivt' nght(..,)

of the \-\-'ork identified in this app:ication and that tht:' statl~m['nts maJe
by me in thi.':> Olrrlicatil"ln arc corn~l.;: h) the best of my knt'\''v·t<'dge.
datt~

[phone]

" I othCI copyright c!airn.lnt

~

Typed or printed namt and date .... If this applicatil)n gin's.,

b

~ authorizt~d agent ot

.Alfred

A.

Knopf

N2me of <luthor or other copyright claimant, or owner of exduslIIS nght(s)'&

rublic~ltilln

in .,P,K(, 3, du nut .. ign and submit it bt.'~on:.' th.lt date.

Oate~ January

J --------------x_~~JZ~/~~ ____

Rebecca Heisman

"Rt

rilten

sign.ture (Xl T

<

if

.

24, 2003

.'

YOU MUST

Certificate
Name'"
will be
Rebecca Heisman, Alfred A. Knopf
mailed In
f-----------.--------window
Nu...-lSlreeVApt ...

envelope
to this

address:

• Complete all

- - - -

._-----

n~ssary

spaces

• Sign your application In space 8
SEND ALL 3 ELEMENTS
IN THE SAME PACKAGE

_...-

fet'>.~sutljedlD
rna,.for~

1745 Broadway, 3rd Floor

rees.thecllJe

Copynghl Qffio;e
~ileal

CrtylStatelZlP ...

-~.p,

New York, NY 10019

Copynght Office
101 Independence Avenue, S E
Washington, D.C. 20559-6000

OI"~,OfCiII

(ZOZ}J07·lOOQ

-17 U.S.C. § S06(e): An,! person who knOlNingly makes a false representation of a material fact in thl:! application for copyright registration proV1ded fOf' by section 409, or In any wntten statement filed In connectJon
with the applicatIOn, shall btl fined not more than $2,500

Rev. June 2002-20,000 Web Rev: June 2002

e Printed on recycled paper

US Govemment Printing Office 2000-461.'13/20.021

A-223
Case 1:11-cv-06351-HB Document 83

Filed 06/29/12 Page 11 of 19

EXHIBIT B

A-224

'
4

Case 1:11-cv-06351-HB Document 83

•

Filed 06/29/12 Page 12 of 19

ol!.

RANDOM HOUSE

i'cbl"La l"Y 23, 20 I 0

BERTELSMANN
TJ. Std es
c/o Scovil Galen Ghosh LitclalY Ag:Jecy
276 Fil'th Avenue Suite 708
New Yo rk , NY 1000 I

Dt'ar M r. Sliks,

We are pleased to mfom1 you that your title has been selec ted to he incllld erl in Random House's
El ec tron ic Rook,

Dr

"choc k," p\luli shi ng p rogram.

With the widespread lise by consumers of electronic d ev;ces suc h as the I Pod, the Amazon Kin d le
a nd the Son y Reader, a sigl11licant market for ehooks i ~ beg innin g to ~111e r ge. R:m dol1l HOllse is
cOll1 l11i tten to mak ing its CJ..kllSivt' bc ..:klist urli tle ::; avai lable to consumers III new ways and we
u
ha ve e very expectation that the wider a vailabi lity o f your books will inc rease sales to a segment
o f lhe population that has chosen cbooks as their prefen-ed readi ng opti on .
We will pil y royalties on all ebook sales u f yuur bouk(s) in accordance with the following
provIs ion:
"On al l copies o f th e Work sold as an "Electro nic Book" a s defined l lere iJl : 25% uft he
::HllQUllt

recei veu.

or

As used in thi s Agree ment, Electronic Book mcans the text
tl-:c \Vork in complete,
f0n11 hy any meallS of elist! ibut iu n or transm ission,
whet her now or hen.;Clfter known or developed, intended to make the text and any
illustrations or photographs contai ned in the Work availab le in vi suaJ form for reading."

condensed, adapted or abndged

If these term s are acceptabl e, please sign each copy o f thi s leUer, ""hieh wi ll serve as an
amcHdlllcnt tu our agreement dated Kovember 9: 1998 fo r JESSE JAM ES, and return one copy in

the enc losed envelope. The other copy is for your reeoids.

All other terms of the Agrctment shall rema in in full force and effect.
Should you have any questions about the forego ing, please contact Joe Vi ll ell a
Departmen t.

Agreed to and Accepted by:

In

our Contracts

Sincerely,

Marleline Mcintosh
Pn.::si denl, Sales, Opera ti ons and Digital
Random House, [nc o

1745 BROADWAY, NEVvYORK, NY 10019 • TELEPHONE [phone]

CONFIDENTIAL

AG 0000141

A-225
Case 1:11-cv-06351-HB Document 83

Filed 06/29/12 Page 13 of 19

EXHIBIT C

A-226
Amazon.com: Jesse James: Last Rebel of the Civil War (9780375705588):...

http://www.amazon.com/Jesse-James-Last-Rebel-Civil/dp/0375705589/r...

Case 1:11-cv-06351-HB Document 83

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Book Description
Publication Date: October 28, 2003

In this brilliant biography T. J. Stiles offers a new understanding of the legendary outlaw Jesse James. Alt
portrayed as a Robin Hood of the old west, in this ground-breaking work Stiles places James within the co
conflicts of the Civil War to reveal a much more complicated and significant figure.
Raised in a fiercely pro-slavery household in bitterly divided Misssouri, at age sixteen James became a bu
savage Confederate guerrillas that terrorized the border states. After the end of the war, James continued
and murder into the brutal era of reconstruction, when his reckless daring, his partisan pronouncements,
sympathetic editor John Newman Edwards placed him squarely at the forefront of the former Confederate
power. With meticulous research and vivid accounts of the dramatic adventures of the famous gunman, T.
resembles not the apolitical hero of legend, but rather a figure ready to use violence to command attentio
many ways, a forerunner of the modern terrorist.

Frequently Bought Together

AG 0002676
1 of 9

4/5/2012 4:45 PM

A-227
Case 1:11-cv-06351-HB Document 83

Filed 06/29/12 Page 15 of 19

EXHIBIT D

A-228
Case 1:11-cv-06351-HB Document 83 Filed 06/29/12 Page 16 of 19
Alfred ·A· Knopf

January 28, 2012

SCOVIL GALEN GHOSH LITERARY
AGENCY, INC.
276 FIFTH AVENUE SUITE 708
NEW YORK NY

10001

JESSE JAMES
Author(s): T.]. STILES

Royalty Summary Statement
For Period Ending September 30, 2011
Current
Copies

Earnings

o

Hardcover
Electronic Book
Trade Paperback

359
948

Cumulative
Copies
Earnings

0.00
820.08
1,182.31

24,981
656
41,042

88,742.33
1,475.88
49,238.50

Subtotal
Subsidiary Rights Income
Earnings

1,307

2,002.39
10.87
2,013.26

66,679

139,456.71
36,946.23
176,402.94

Total Earnings
Less: Original Guarantee
Less: Royalty Payments

1,307

2,013.26

66,679

176,402.94
100,000.00
74,389.68

Total Balance Due

2,013.26

Allocation By Participant
SCOVIL GALEN GHOSH LITERA

Payee #38885

Statement #1559976-01 I 1110003681-001 I Participant ID-3110037763

ACH

100.00%

2,013.26

Page 1 of

4

1745 Broadway, New York, NY 10019 Phone [phone] Email [e-mail]
CONFIDENTIAL

AG 0002434

A-229
Case 1:11-cv-06351-HB Document 83

Knopf

Filed 06/29/12 Page 17 of 19

January 28, 2012
SCOVIL GALEN GHOSH LITERARY

Royalty Detailed Statement
For Period Ending September 30, 2011
JESSE JAMES

9780375405839

Royalty Rate or

Royalty Per Unit or

Current

External Market

Market

Net Receipts

Copies

Cumnlative .'

Current
Earnings

Copies

Cumulative
Earnings

$ 27.50 On Sale: September 17, 2002 HC
Sub Total

Hardcover
9780307773371

0.00

24,981

88,742.33

Total in USD

0

0.00

24,981

88,742.33

7

20.29
18.20

298

662.73

10

22.72

8.84
47.33

8
316

17.68
703.13

$ 17.00 On Sale: October 27, 2010 EL

Canada

25.0000
25.0000

Export

25.0000

U.S.

9780307773371

0

$ 81.09
$ 72.76
$ 35.36
Sub Total

8
4
19

$ 12.99 On Sale: October 27, 2010 EL
25.0000

Sub Total

U.S.

9780375705588

772.75
772.75

340
340

772.75
772.75

Total

eBook

340
359

820.08

656

1,475.88

4.986.53
19.13

$ 3.090.97

in USD

340

$ 17.00 On Sale: October 28, 2003 TP

U.S.
Canada

7.5000
3.7500

1.27500
0.63750

932

1,188.30

3,911

10

Export
Spc1 diSCi

5.0000
5.0000

$ J53.42

21
1
964

6.38
7.68
0.15
1,202.51

30
53

9780375705588

S 3.00
Sub Total

3,995

20.13
0.15
5,025.94

5,643

7,173.66

56
79

35.60
30.80

5,779

0.15
7,240.21

$ 16.95 On Sale: October 28, 2003 TP

U.S.

7.5000

Canada
Export
Spcl disc!

3.7500
5.0000
5.0000

1.27125
0.63563
0.00000
0.00000
Sub Total

Statement #1559976-01 / 1110003681-001 / Participant ID-3110037763

(14)
0
0
0
(14)

(17.80)
0.00
0.00
0.00
(17.80)

Page 2 of

4

1745 Broadway, New York, NY 10019 Phone [phone] Email [e-mail]
CONFIDENTIAL

AG 0002435

A-230
Case 1:11-cv-06351-HB Document 83 Knopf 06/29/12 Page 18 of 19
Filed

January 28, 2012
SCOVIL GALEN GHOSH LITERARY
Royalty Detailed Statement
For Period Ending September 30, 2011
JESSE JAMES
Market

9780375705588

Royalty Rate or
External Market

Royalty Per Unit or
Net Receipts

Current
Copies

Current
Earnings

Cumulative
Copies

Cumulative
Earnings

$ 16.00 On Sale: October 28, 2003 TP

U.S.

7.5000

1.20000

(2)

(2.40)

30,477

36,572.40

Canada

3.7500

0.60000

0

0.00

510

306.00

Export

5.0000

0.00000

5.0000
5.0000

0.00000
0.00000

0.00
0.00

184

Spcl disct

0
0
0
(2)

0.00
(2.40)

63
34

69.82
13.19
10.94

31,268

36,972.35

948

1,182.31

41,042

49,238.50

Premium

Sub Total

Trade Paperback

Total

in USD

Statement #1559976-01 / 1110003681-001 / Participant ID-311oo37763

Page 3 of

4

1745 Broadway, New York. NY 10019 Phone [phone] Email [e-mail]
CONFIDENTIAL

AG 0002436

A-231
Case 1:11-cv-06351-HB Document 83

Knopf
Filed

06/29/12 Page 19 of 19

January 28, 2012

SCOVIL GALEN GHOSH LITERARY
Subsidiary Rights Income
For Period Ending September 30, 2011
JESSE JAMES
Licen~ee

Rights Sold

Territory
or Language

9780375405839
RHUK Cape
il Saggiatore
Easton Press

Lic.Total
Lie.Total

Current
Copies

Current
Receipts

Proprietor's
Share %

Current
Earnings

Cumulative

Cumulative

Copies

Earnings

Lic.Total
Lic.Total
Lie.Total
Lic.Total

9780375705588
Ebrary Proque

Subsidiary Rights

0
2,312
0
0
4,185
0

27,989.86
3.311.47
1,000.00
375.00
3,766.95
325.00

0

0.00

0.00

6,497

36,768.28

English

0

21.73

10.87

0

177.95

0

21.73

10.87

0

177.95

Total

Permission

0.00
0.00
0.00
0.00
0.00
0.00

ISBN Total

Bookspan
The Globe Peq

0.00
0.00
0.00
0.00
0.00
0.00

ISBN Total

AARP

0
0
0
0
0
0

0

21.73

10.87

6,497

36,946.23

Statement #1559976-01 I 1110003681-001 I Participant ID-31l0037763

50.00%

Page 4 of

4

1745 Broadway, New York, NY 10019 Phone [phone] Email [e-mail]
CONFIDENTIAL

AG 0002437

A-232
Case 1:11-cv-06351-HB Document 84

Filed 06/29/12 Page 1 of 5

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

Index No. 11 Civ. 6351 (HB)

DECLARATION OF TROND ANDREASSEN
I, Trond Andreassen, hereby declare as follows:
1.

I am one of the plaintiffs in the above-captioned action and submit this

declaration in support of Plaintiffs’ motion for summary judgment.
2.

I have served as Secretary General of plaintiff Norsk faglitterær forfatter-og

oversetterforening (“NFF”) since 1986, with the exception of 1995-1997 when I served as Head
of division for the higher education department of Scandinavian University Press, a Norwegian
academic publishing house. I have written and published a comprehensive account of the
Norwegian literary system and the changes the book industry has gone through from a variety of
perspectives in the industry including authors, readers, publishers, booksellers, book clubs,
libraries, and public policy literature.
The Work At Issue
3.

I am the sole author and copyright holder of the non-fiction work Bok-Norge: En

Litteratursosiologisk Oversikt (Norwegian Books: A Sociological Overview of Literature)
(hereafter the “Bok-Norge”), and holder of a valid copyright to it under Norwegian law.

19894.300

A-233
Case 1:11-cv-06351-HB Document 84

4.

Filed 06/29/12 Page 2 of 5

Although I have licensed to my publishers certain exclusive rights in connection

with the commercial exploitation of Bok-Norge, I did so in exchange for the payment of royalties
and I remain the legal and/or beneficial owner of all rights in and to Bok-Norge. I never assigned
to any third party the copyright to Bok-Norge.
Unauthorized Uses Of My Work
5.

It has come to my attention that a print copy of my work Bok-Norge was copied

without my permission when it was digitized by one the defendant universities (collectively
referred to herein along with HathiTrust as “Defendants”) in partnership with Google, as part of
the HathiTrust and/or Google Books projects. This digitization took place without my
knowledge, consent, or approval. I did not authorize Google, HathiTrust, or any of the university
defendants to digitize or make any other use of Bok-Norge. To date, I have received no
compensation of any kind for Defendants’ digitization and various uses of Bok-Norge.
Harm Resulting From Defendants’ Use Of My Work
6.

As an author who depends in large part on the value of my work to earn a living, I

brought this action because the Defendants’ unauthorized digitization and use of Bok-Norge has
harmed or threatens to harm me in a number of ways.
7.

I have reviewed the Declaration of T.J. Stiles and I agree with and incorporate by

reference Mr. Stiles’ descriptions of the various harm and potential harm caused by the
Defendants’ actions. One difference between Mr. Stiles and me is that (as described below) I
have not yet chosen to make Bok-Norge available in digital form. However, this difference does
not change the fact that Defendants’ actions are causing and threatening to cause damage to me
and to the value of Bok-Norge.

2

19894.300

A-234
Case 1:11-cv-06351-HB Document 84

8.

Filed 06/29/12 Page 3 of 5

I believe that I am entitled to determine whether, when and under what

circumstances Bok-Norge is scanned, digitized, copied and used. Defendants’ insistence that the
new, complex, technologically-enabled uses they intend to make of Bok-Norge should be
permitted without my consent dangerously presupposes that copyright law does not give authors
any right to control how their works are used and exploited in these contexts. To the best of my
knowledge, this is not the law in the United States, and it certainly is not the law in Norway.
While Bok-Norge is not yet available in digital form, I reserve the right to license the creation of
digital versions of it when I choose to.
9.

Defendants argue that uses of Bok-Norge that do not allow individuals to read the

text, such as non-consumptive research and full-text searching, do not inhibit sales of Bok-Norge
or deprive me of licensing opportunities and therefore do not require my permission. This is not
so. As the Declaration of T.J. Stiles points out, these kinds of uses represent a new market
whose value is evidenced by Defendants’ use of Bok-Norge, as well as the works owned by the
other Plaintiffs and the millions of other works Defendants scanned and copied. I believe that I
have the legal right to decide whether or not to permit these uses, and to seek remuneration for
these uses if I do decide to allow them. Defendants could have asked my permission to digitize
Bok-Norge, or offered to purchase one or more additional copies for their library collections.
10.

In addition, by failing to seek a license, Defendants eliminated the usual

mechanism that authors use to exercise control over our work: licensing or other agreements that
define terms of use and hold licensees accountable. Without such a contract, I am rendered
powerless to dictate terms as to how Bok-Norge may or may not be used. I also have no ability
to insist that HathiTrust take security measures to protect my work. I have no power to ensure
that the infringing copies of my work are truly in a “dark archive” that is not accessible for

3

19894.300

A-235
Case 1:11-cv-06351-HB Document 84

Filed 06/29/12 Page 4 of 5

viewing or further copying. I have no assurance that Defendants’ actual use of Bok-Norge is
limited to the uses they claim to intend to make, and no power of enforcement if their uses
exceed this scope.

[The rest of this page intentionally left blank]

4

19894.300

A-236
Case 1:11-cv-06351-HB Document 84

Filed 06/29/12 Page 5 of 5

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

Dated: Oslo, Norway
June 22nd, 2012

______________________
TROND ANDREASSEN

5

19894.300

A-237
Case 1:11-cv-06351-HB Document 85

Re UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------X
THE AUTHORS GUILD, INC., et al.,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.,
:
:
Defendants.
:
:
----------------------------------------------------------------X

Filed 06/29/12 Page 1 of 5

Index No. 11 Civ. 6351 (HB)

DECLARATION OF OWEN ATKINSON
I, Owen Atkinson, hereby declare as follows:
1.

I am the Chief Executive of The Authors’ Licensing and Collecting Society (the

“ALCS”), one of the plaintiffs in the above-captioned action
2.

I submit this declaration in support of Plaintiffs’ motion for summary judgment. I

have personal knowledge of the facts set forth in this Declaration and could testify competently
at a hearing or trial if called upon to do so.
3.

ALCS is the United Kingdom collecting society for authors of all genres of

literary and dramatic copyright works. Since its founding in 1977, ALCS has paid more than
£250 million to its writer-members for secondary uses of their works, including photocopying,
scanning, and digital copying of its member’ works. Among its more than 80,000 members,
ALCS represents more than 50,000 book authors.
4.

ALCS research shows that about half of all books copied under its agreements are

out of print. As a consequence, as part of its routine operations, ALCS identifies and pays
authors of out-of-print works. Over a ten-year period, ALCS has found that it identifies, contacts
and pays the contributors to more than 95% of the most commonly copied out-of-print books.

A-238
Case 1:11-cv-06351-HB Document 85

Filed 06/29/12 Page 2 of 5

The Works At Issue
5.

It is my understanding that more UK books were digitized as part of the Google

Library Project than any other country other than the United States. Upon information and
belief, Defendants have digitized without authority more than 35,000 books by ALCS members
(the “ALCS Works”), including at least two books that Defendants had deemed “orphan work
candidates” – Frederick Copelston’s The History of Philosophy: Volume II and Eleanor
Farjeon’s A Nursery in the Nineties.
Harm Resulting From Defendants’ Use Of The Works
6.

The ALCS agreed to join this lawsuit as an associational plaintiff after learning

that tens of thousands of print copies of ALCS Works and millions of other copyrighted books
were digitized and being used as part of the Google Library Project, and that Defendants planned
to begin making digital copies of purported “orphan works” available for free.
7.

I have reviewed the declarations of several individual authors who are plaintiffs in

this litigation, including the declarations of Fay Weldon (who is a member of ALCS), T.J. Stiles,
Pat Cummings and Roxana Robinson. I believe that the works written by those authors provide
a fair sampling of the types of works authored by members of ALCS.
8.

I agree with and incorporate by reference the description in those declarations of

the various harms and potential harms that result from Defendants’ unauthorized digitization and
use of copyrighted works. Those descriptions need not be repeated here in full, but can be
summarized as follows.
9.

First, each digital copy of an ALCS Work that is created by Defendants without

purchase or license represents a lost sale to the associated rightsholder. Defendants could have
purchased a copy but instead had it scanned without compensating the copyright owner. As

2

A-239
Case 1:11-cv-06351-HB Document 85

Filed 06/29/12 Page 3 of 5

ALCS administers digitization rights on behalf of its members, Defendants could have
investigated with ALCS the potential for a license. Whenever ALCS receives individual
digitization requests, we act as an intermediary contacting the relevant member(s) to ascertain
whether or not they wish to give permission.
10.

Second, Defendants’ storage of the ALCS Works in an online digital repository

exposes that property to security risks for which the rightsholders receive no commensurate
remuneration. Unauthorized access to copyrighted books leading to widespread piracy would
gravely impact the market for those works.
11.

Third, Defendants’ various uses of the ALCS Works undermine various licensing

opportunities for rightsholders. For example, authors routinely grant online distributors like
Amazon a license to index their books and make them searchable as part of a commercial
arrangement targeted at promoting book sales. Defendants do the same thing, but without a
license and without the search function being part of an effort to sell the books and provide
revenue to the author. Defendants also permit the books to be used for non-consumptive
research, an emerging field that represents another potential licensing stream for authors.
12.

Fourth, Defendants’ mass digitization and orphan works programs undercut

opportunities for authors to generate royalty streams by entering into collective licensing
agreements. As part of a major copyright review, the UK Government is currently considering
new legislation to facilitate licensing of high-volume collections of works, such as archives
comprising orphan works. ALCS has been involved throughout the consultation process for this.
13.

Fifth, making books available through the Orphan Works Project will directly

undermine efforts to revive out of print books and will impact future sales of such books. The
fact that Defendants’ orphan works candidates list included at least two UK books whose rights

3

A-240
Case 1:11-cv-06351-HB Document 85

Filed 06/29/12 Page 4 of 5

are administered by the ALCS shows the international reach of Defendants’ program and the
mistakes made thereunder. As mentioned, the ALCS routinely monetizes out-of-print works of
its members by negotiating licenses for secondary rights.
14.

In short, Defendants activities have harmed or have the potential to cause

enormous harm to the rights of authors.

[THIS SPACE INTENTIONALLY LEFT BLANK]

4

A-241
Case 1:11-cv-06351-HB Document 85

Filed 06/29/12 Page 5 of 5

of America that the
1 declare under penalty of perjury under the laws of the United States

foregoing Is tru.e and correct.

Dated:

London, Englan d
June~ 2012

OWEN ATKINSON

5

A-242
Case 1:11-cv-06351-HB Document 86

Filed 06/29/12 Page 1 of 27

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

Index No. 11 Civ. 6351 (HB)

DECLARATION OF PAT CUMMINGS
I, Pat Cummings, hereby declare as follows:
1.

I am one of the plaintiffs in the above-captioned action and submit this

declaration in support of Plaintiffs’ motion for summary judgment.
2.

I am the author and illustrator of numerous books for children and young adults. I

have made my living as a full-time illustrator and writer for over thirty-five years, and am also an
adjunct professor at Pratt Institute and Parsons The New School For Design, where I teach
classes on children’s book illustration and writing. In addition, I speak at many literary events
and conferences each year and conduct a Children’s Book Boot Camp, an annual five week long
summer workshop for writers and illustrators of picture books. I sit on the boards of The Society
of Children’s Book Writers and Illustrators and The Eric Carle Museum of Picture Book Art. I
am also a member of the Board of Directors of Plaintiff The Authors Guild.
The Works At Issue
3.

I am the sole author and copyright owner of each work listed on Exhibit A hereto

(hereafter referred to as the “Works”). A true and correct copy of the copyright registration for
each Work is attached hereto as Exhibit B.

19894.300

A-243
Case 1:11-cv-06351-HB Document 86

4.

Filed 06/29/12 Page 2 of 27

Although I have licensed to my publishers certain exclusive rights in connection

with the commercial exploitation of my Works, I did so in exchange for the payment of royalties
and I remain the legal and/or beneficial owner of all rights in and to my Works. I never assigned
to any third party the copyright to my Works.
Unauthorized Uses Of My Works
5.

It has come to my attention that print copies of my Works were copied without

my permission when they were digitized by one of the defendant universities (collectively
referred to herein along with HathiTrust as “Defendants”) in partnership with Google, as part of
the HathiTrust and Google Books projects. This digitization took place without my knowledge,
consent, or approval. I did not authorize Google, HathiTrust, or any of the university defendants
to digitize or make any other use of my Works. To date, I have received no compensation of any
kind for Defendants’ digitization and various uses of my Works.
Harm Resulting From Defendants’ Use Of My Works
6.

As an author who depends in large part on the value of my work to earn a living, I

brought this action because the Defendants’ unauthorized digitization and use of my Works has
harmed or threatens to harm me in a number of ways.
7.

I have reviewed the Declaration of T.J. Stiles and I agree with and incorporate by

reference Mr. Stiles’ descriptions of the various harm and potential harm caused by the
Defendants’ actions. Two differences between Mr. Stiles and me are that (as described below)
certain of my Works are no longer in print and I have not yet chosen to make any of my Works
available in digital form. These differences do not, however, change the fact that Defendants’
actions are causing and threatening to cause damage to me and to the value of my Works.
8.

While several of my Works are no longer in print, specifically C.L.O.U.D.S.,

Jimmy Lee Did It, and Talking With Artists: Volume 2, my other three works, Clean Your Room,
2

19894.300

A-244
Case 1:11-cv-06351-HB Document 86

Filed 06/29/12 Page 3 of 27

Harvey Moon!, Talking With Artists: Volume 1, and Talking With Adventurers, are in print and
available for sale. In either case, the harms articulated in the Declaration of T.J. Stiles affect me
because these Works are still protected by copyright law and I still hold the copyright. Whether
my Works are in print or not, I should have the right to decide how these works are copied or
distributed and should have the option to resurrect these Works on my own terms, whether that
means self-publishing them, making new publishing deals, or anything else I choose.
9.

New technology is opening new possibilities in publishing and it is now possible,

for the first time in history, to self-publish a book in print or digital forms without the aid of a
publishing company. While I have not yet made a decision on how to proceed with my out-ofprint Works, I am aware of this option and consider it a possibility for the future. This is why
even my currently out-of-print Works are affected by the Defendants’ unauthorized copying.
10.

Moreover, I have received an offer to make one of my Works available in digital

form. See Exhibit C. Despite this offer, I have chosen not to make my Works available in
electronic format yet, though I do intend to eventually. Digital marketplaces and security
protections are still developing, and I am waiting to enter this marketplace until I feel
comfortable with the arrangement and with security provisions.
11.

I believe that I am entitled to determine whether, when and under what

circumstances my Works are scanned, digitized, copied and used. Defendants’ insistence that
the new, complex, technologically-enabled uses they intend to make of my Works should be
permitted without my consent dangerously presupposes that copyright law does not give authors
any right to control how their works are used and exploited in these contexts. To the best of my
knowledge, this is not the law in the United States.

3

19894.300

A-245
Case 1:11-cv-06351-HB Document 86

12.

Filed 06/29/12 Page 4 of 27

Defendants argue that uses of my Works that do not allow individuals to read the

text, such as non-consumptive research and full-text searching, do not inhibit sales of my Works
or deprive me of licensing opportunities and therefore do not require my permission. This is not
so. As the Declaration of T.J. Stiles points out, these kinds of uses represent a new market
whose value is evidenced by Defendants’ use of my Works, as well as the works owned by the
other Plaintiffs and the millions of other works Defendants scanned and copied. I believe that I
have the legal right to decide whether or not to permit these uses, and to seek remuneration for
these uses if I do decide to allow them. Defendants could have asked my permission to digitize
my Works, or offered to purchase one or more additional copies of my in-print Works for their
library collections.
13.

In addition, by failing to seek a license, Defendants eliminated the usual

mechanism that authors use to exercise control over our work: licensing or other agreements that
define terms of use and hold licensees accountable. Without such a contract, I am rendered
powerless to dictate terms as to how my Works may or may not be used. I also have no ability to
insist that HathiTrust take security measures to protect my work. I have no power to ensure that
the infringing copies of my work are truly in a “dark archive” that is not accessible for viewing
or further copying. I have no assurance that Defendants’ actual use of my work is limited to the
uses they claim to intend to make, and no power of enforcement if their uses exceed this scope.

[The rest of this page intentionally left blank]

4

19894.300

I A-246 I
Case 1:11-cv-06351-HB Document 86

Filed 06/29/12 Page 5 of 27

I declare under penalty of perjury that the foregoing is true and correct.
Dated:

New York, New York
June 28, 2012

_
________________________________
PAT CUMMINGS

5

19894.300

A-247
Case 1:11-cv-06351-HB Document 86

Filed 06/29/12 Page 6 of 27

EXHIBIT A

C.L.O.U.D.S

Clean Your Room,
Harvey Moon!

Cummings, Pat

TITLE

Cummings, Pat

AUTHOR

SUBSEQUENT
PUB(S).

1996/New York:
Houghton Mifflin

1994-01-01/New
York: Simon &
Schuster

1991-09/New
York: Spoken
Arts (audiobook)

1991/New York:
MacMillan
McGraw Hill
School Division

Hardcopy

MOST RECENT
PUB. HARDCOPY
OR ELECTRONIC?
Hardcopy

Filed 06/29/12 Page 7 of 27

1986-04-02/New
York: Lothrop, Lee &
Shepard Books
1991-03-01/New
1991-03-31/New
York: Bradbury Press York: Simon &
Schuster

FIRST PUBLICATION

EXHIBIT A

Case 1:11-cv-06351-HB Document 86

TX0003159777
1991-08-08

U.S. COPYRIGHT
REGISTRATIONS OR
RENEWALS
TX0001806038
1986-04-15

A-248

Cummings, Pat

AUTHOR
Jimmy Lee Did It

TITLE

SUBSEQUENT
PUB(S).

12

2000/Sacramento:
Clearinghouse for
Specialized Media
& Technology
(computer disk)

1997/New York:
Macmillan
McGraw Hill
School Division

01-1995/New
York: Harper
Trophy

1993/Littleton,
MA: Sundance
Publishers

MOST RECENT
PUB. HARDCOPY
OR ELECTRONIC?
Electronic

Filed 06/29/12 Page 8 of 27

1985-08-08/New
1985/Littleton,
York: Lothrop, Lee & MA: Sundance
Shepard Books
Publishers

FIRST PUBLICATION

Case 1:11-cv-06351-HB Document 86

U.S. COPYRIGHT
REGISTRATIONS OR
RENEWALS
TX0001650936
1985-09-05

A-249

Talking With
Adventurers

Talking With
Artists: Volume 2

Cummings, Pat

Cummings, Pat and
Cummings, Linda,
Ph.D.

Talking With
Artists: Volume 1

TITLE

Cummings, Pat

AUTHOR

13

1995-09-01/New
York: Simon &
Schuster Books for
Young Readers
1998-0810/Washington, D.C.:
National Geographic
Society

1992-03-01/New
York: Bradbury Press

FIRST PUBLICATION

SUBSEQUENT
PUB(S).

1999/New York:
Simon & Schuster
Books for Young
Readers (revised
cover edition)

MOST RECENT
PUB. HARDCOPY
OR ELECTRONIC?

Filed 06/29/12 Page 9 of 27

1992/Needham,
MA: Silver
Burdett Ginn

Case 1:11-cv-06351-HB Document 86

VA0000932460
1998-10-27

VA0000932461
1998-10-27

TX0004242559
1996-04-29

U.S. COPYRIGHT
REGISTRATIONS OR
RENEWALS
TX0003422950
1992-10-16

A-250

A-251
Case 1:11-cv-06351-HB Document 86

Filed 06/29/12 Page 10 of 27

EXHIBIT B

A-252
Case 1:11-cv-06351-HB Document 86

Filed 06/29/12 Page 11 of 27

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A-263
Case 1:11-cv-06351-HB Document 86

Filed 06/29/12 Page 22 of 27
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A-264
Case 1:11-cv-06351-HB Document 86

Filed 06/29/12 Page 23 of 27

VA 932-461

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A-265
Case 1:11-cv-06351-HB Document 86

...

:

Filed 06/29/12 Page 24 of 27

EXAMINED BY

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A-266
Case 1:11-cv-06351-HB Document 86

Filed 06/29/12 Page 25 of 27

EXHIBIT C

I A-267 I
Case 1:11-cv-06351-HB Document 86

S I MO N &
l aOI\"""o<~r

Filed 06/29/12 Page 26 of 27

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A C B S COM PANY

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CONFIDENTIAL

AG 0000043

A-268
Case 1:11-cv-06351-HB Document 86

S I MON

&

Filed 06/29/12 Page 27 of 27

SC H USTER

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AND AG REED

SLI«JN A SCHUSTER. INC

"._ - - - - -- - •

A CBS COMPANY
CONFIDENTIAL

AG 0000044

A-269
Case 1:11-cv-06351-HB Document 87

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

Filed 06/29/12 Page 1 of 20

Index No. 11 Civ. 6351 (HB)

DECLARATION OF KELLY DUFFIN
I, Kelly Duffin, hereby declare as follows:
1.

I am the Executive Director of The Writers’ Union of Canada (“TWUC”), one of

the plaintiffs in the above-captioned action.
2.

I submit this declaration in support of Plaintiffs’ motion for summary judgment. I

have personal knowledge of the facts set forth in this Declaration and could testify competently
at a hearing or trial if called upon to do so.
The Writers’ Union of Canada
3.

TWUC has approximately 2,000 members who earn their living from writing

books. Since its inception in 1973, TWUC has been an advocate for effective copyright law,
protection of freedom of expression, fair publishing contracts, and other issues that affect
authors. TWUC’s objects include uniting authors for the advancement of their common interests
and fostering writing in Canada. Certified by the Canadian Artists and Producers Professional
Relations Tribunal, TWUC is the national voice of professional book writers in Canada in the
English language.

A-270
Case 1:11-cv-06351-HB Document 87

Filed 06/29/12 Page 2 of 20

The Works At Issue
4.

Upon information and belief, members of TWUC own the copyrights in hundreds

or thousands of works that were digitized and are being used by Defendants without
authorization (collectively, the “Member Works”).
5.

One such member is Greg Hollingshead, who is a former Chair of TWUC and the

author of the Governor General’s Award-winning book The Roaring Girl (1995/Toronto:
Somerville House). Upon information and belief, Roaring Girl was digitized by Defendants and
incorporated into the HathiTrust Digital Library. See http://catalog.hathitrust.org/Record/
007138321. As the author and copyright owner of The Roaring Girl (see U.S. Copyright Reg.
No. TX0004415789), it is my understanding that Mr. Hollingshead could bring a lawsuit in his
own right against Defendants for digitizing and using his work without authorization.
6.

In addition to filing this lawsuit to protect the rights of its members, TWUC itself

owns the copyrights in and to a number of works that were scanned and incorporated into
HathiTrust without TWUC’s knowledge or consent. Attached as Exhibit A is a schedule of
works whose copyrights are owned by TWUC and have been infringed by Defendants ( the
“TWUC Works”). Attached as Exhibit B is a copy of the Will showing the bequest of her
copyrights from deceased TWUC member Edith Fowke to TWUC.
Harm Resulting From Defendants’ Use Of The Works
7.

The TWUC agreed to join this lawsuit as an associational plaintiff after learning

that print copies of the TWUC Works, Member Works and millions of other copyright books
were digitized and being used as part of the Google Library Project, and that Defendants planned
to begin making digital copies of purported “orphan works” available for free.

2

A-271
Case 1:11-cv-06351-HB Document 87

8.

Filed 06/29/12 Page 3 of 20

I have reviewed the declarations of several individual authors who are plaintiffs in

this litigation, including the declarations of T.J. Stiles, Pat Cummings and Roxana Robinson. I
believe that the works written by those authors provide a fair sampling of the types of works
authored by members of TWUC.
9.

I agree with and incorporate by reference the description in those declarations of

the various harms and potential harms that result from Defendants’ unauthorized digitization and
use of copyrighted works. Those descriptions need not be repeated here in full, but can be
summarized as follows.
10.

First, each digital copy of a TWUC or Member Work that is created by

Defendants without purchase or license represents a lost sale to the associated rightsholder.
Defendants could have purchased a copy but instead had it scanned without compensating the
copyright owner.
11.

Second, Defendants’ storage of the TWUC and Member Works in an online

digital repository exposes that property to security risks for which the rightsholders receive no
commensurate remuneration. Unauthorized access to copyright books leading to widespread
piracy would gravely impact the market for those works.
12.

Third, Defendants’ various uses of the TWUC and Member Works undermine

various licensing opportunities for rightsholders. For example, authors routinely grant or
authorize their publishers to grant online distributors like Amazon a license to scan and make
portions their books viewable online as part of a commercial arrangement targeted at promoting
book sales. Defendants also scan and make books searchable but without a license and without
being part of an effort to sell the books and provide revenue to the author. Defendants also

3

A-272
Case 1:11-cv-06351-HB Document 87

Filed 06/29/12 Page 4 of 20

permit the books to be used for non-consumptive research, an emerging field that represents
another potential licensing stream for authors.
13.

Fourth, Defendants’ mass digitization and orphan works programs undercut

opportunities for authors to receive royalties. If permitted to proceed, the Orphan Works Project
is likely to negatively impact revenues for authors generated through a system established in
Canada to address orphan works. Section 77 of the Canadian Copyright Act permits the
Copyright Board of Canada (the “Board”) to issue licenses to users whose reasonable efforts to
locate a copyright holder have been unsuccessful. The Board sets a licensing fee for each
permitted use, which compensation is generally directed to a designated collective society
authorized by Canada’s Copyright Act to license a repertoire of authors’ works. In the case of a
print publication in languages other than French, the user pays the fee or royalties to the
collective society known as Access Copyright, which holds the payment in trust for the
unlocatable author or may use the payment for the benefit of the rightsholders whose works it
represents, provided that the author may claim the payment from Access Copyright within five
years of the expiry of the license. Attached as Exhibit C is an example of a license issued by the
Board to the University of Athabasca to digitally reproduce and distribute certain newspapers in
exchange for a $5,000 licensing fee. Defendants’ Orphan Works Project allows people to make
uses of orphan works but without any system to compensate rightsholders.
14.

Fifth, making books available through the Orphan Works Project will directly

undermine efforts to revive out-of- print books and will impact future sales of such books.
15.

In short, Defendants activities have harmed or have the potential to cause

enormous harm to the rights of authors.

4

A-273
Case 1:11-cv-06351-HB Document 87

Filed 06/29/12 Page 5 of 20

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

Dated: Toronto, Ontario
June 28, 2012

KELLY DUFFIN

5

A-274
Case 1:11-cv-06351-HB Document 87

Filed 06/29/12 Page 6 of 20

EXHIBIT A

Canada’s Story in Song
Canadian Folklore
Folk songs of Canada

Folk Songs of Quebec
Folklore of Canada

Edith Fowke

Edith Fowke

Edith Fowke

Edith Fowke

A Family Heritage

Edith Fowke and Jay
Rahn

Edith Fowke

A Bibliography of
Canadian Folklore

TITLE

Edith Fowke and Carole
Carpenter

AUTHOR(S)

1976/Toronto: McClelland
& Stewart

1957/Waterloo: Waterloo
Music Co.

1954/Waterloo: Waterloo
Music Co.

1988/Toronto: Oxford
University Press

1960/Toronto: W. J. Gage

1994/Calgary: University
of Calgary Press

1976/Ontario: York
University.

FIRST PUBLICATION

1990-04-01/Toronto:
McClelland &
Stewart

1979-01-01/Toronto:
McClelland &
Stewart

1970/Waterloo:
Waterloo Music Co.

1967/Waterloo:
Waterloo Music Co.

1958/Waterloo:
Waterloo Music Co.

1955/Waterloo:
Waterloo Music Co.

c1965/Toronto: W. J.
Gage

1986/Penguin

1981/Toronto:
University of Toronto
Press

Hardcopy

Hardcopy

Hardcopy

Hardcopy

Hardcopy

Hardcopy

Hardcopy

MOST RECENT
PUB. HARDCOPY
OR ELECTRONIC?

Filed 06/29/12 Page 7 of 20

SUBSEQUENT
PUB(S).

EXHIBIT A

Case 1:11-cv-06351-HB Document 87

N/A – Foreign Work

N/A – Foreign Work

N/A – Foreign Work

N/A – Foreign Work

N/A – Foreign Work

N/A – Foreign Work

N/A – Foreign Work

U.S. COPYRIGHT
REGISTRATIONS OR
RENEWALS

A-275

The Penguin Book of
Canadian Folk Songs
Traditional Singers and
Songs from Ontario
Folktales of French
Canada

Edith Fowke

Edith Fowke

Edith Fowke

Edith Fowke

Songs of Work and
Protest
Tales Told in Canada

Edith Fowke

Songs and Sayings of an
Ulster Childhood

Alice Kane; Edith
Fowke (editor)
Songs of Work and
Freedom

Lumbering Songs from
the Northern Woods

Edith Fowke

Edith Fowke

TITLE

AUTHOR(S)

1979/Toronto: N.C. Press

1965/Ontario: Burns &
MacEachern

1973/Harmondsworth:
Penguin

1986/Toronto: Doubleday

1973/New York: Dover

1960/Chicago: Roosevelt
University

c1983/Toronto:
McClelland & Stewart

1970/Austin: University of
Texas Press

FIRST PUBLICATION

SUBSEQUENT
PUB(S).

1993/Toronto: N.C.
Press

1982/Toronto: N.C.
Press

1981/Toronto: N.C.
Press

1965/Hatboro, PA:
Folklore Associates

1974-0730/Harmondsworth:
Penguin

1961/New York:
Doubleday

Hardcopy

Hardcopy

Hardcopy

Hardcopy

Hardcopy

Hardcopy

Hardcopy

Hardcopy

MOST RECENT
PUB. HARDCOPY
OR ELECTRONIC?

Filed 06/29/12 Page 8 of 20

1985/Toronto: NC
Press

Case 1:11-cv-06351-HB Document 87

N/A – Foreign Work

N/A – Foreign Work

N/A – Foreign Work

N/A – Foreign Work

N/A – Foreign Work

N/A – Foreign Work

N/A – Foreign Work

N/A – Foreign Work

U.S. COPYRIGHT
REGISTRATIONS OR
RENEWALS

A-276

A-277
Case 1:11-cv-06351-HB Document 87

Filed 06/29/12 Page 9 of 20

EXHIBIT B