Authors Guild, Inc. v. Hathitrust

Filing 221

DEFERRED APPENDIX, volume 2 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.[978651] [12-4547]

12-4547-cv
United States Court of Appeals
for the

Second Circuit
AUTHORS GUILD, INC., AUSTRALIAN SOCIETY OF AUTHORS
LIMITED, UNION DES ECRIVAINES ET DES ECRIVAINS QUEBECOIS,
ANGELO LOUKAKIS, ROXANA ROBINSON, ANDRE ROY, JAMES
SHAPIRO, DANIELE SIMPSON, T.J. STILES, FAY WELDON,
AUTHORS LEAGUE FUND, INC., AUTHORS’ LICENSING AND
COLLECTING SOCIETY, SVERIGES FORFATTARFORBUND, NORSK
FAGLITTERAER FORFATTERO OG OVERSETTERFORENING,
WRITERS’ UNION OF CANADA, PAT CUMMINGS, ERIK GRUNDSTROM,
HELGE RONNING, JACK R. SALAMANCA,
Plaintiffs-Appellants,
(For Continuation of Caption See Inside Cover)
_______________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

JOINT DEFERRED APPENDIX
Volume 2 of 5 (Pages A-278 to A-560)
EDWARD H. ROSENTHAL
JEREMY S. GOLDMAN
ANNA KADYSHEVICH
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
[phone]
Attorneys for Plaintiffs-Appellants
(For Continuation of Appearances See Inside Cover)

v.
HATHITRUST, CORNELL UNIVERSITY, MARY SUE COLEMAN, President,
University of Michigan, MARK G. YUDOF, President, University of California,
KEVIN REILLY, President, University of Wisconsin System,
MICHAEL MCROBBIE, President, Indiana University,
Defendants-Appellees,
NATIONAL FEDERATION OF THE BLIND, GEORGINA KLEEGE,
BLAIR SEIDLITZ, COURTNEY WHEELER,
Intervenor Defendants-Appellees.

W. ANDREW PEQUIGNOT
ALLISON M. SCOTT ROACH
JOSEPH M. BECK
KILPATRICK TOWNSEND & STOCKTON LLP
1100 Peachtree Street, NE, Suite 2800
Atlanta, Georgia 30309
[phone]
– and –
JOSEPH E. PETERSEN
ROBERT N. POTTER
KILPATRICK TOWNSEND & STOCKTON LLP
The Grace Building
1114 Avenue of the Americas, 21st Floor
New York, New York 10036
[phone]
Attorneys for Defendants-Appellees

ROBERT J. BERNSTEIN
LAW OFFICE OF ROBERT J. BERNSTEIN
380 Lexington Avenue, 17th Floor
New York, New York 10168
[phone]
– and –
DANIEL FRANK GOLDSTEIN
JESSICA P. WEBER
BROWN GOLDSTEIN LEVY LLP
120 East Baltimore Street, Suite 1700
Baltimore, Maryland 21202
[phone]
Attorneys for Intervenor DefendantsAppellees

i
TABLE OF CONTENTS
(Public Version)
Page
District Court Docket Entries ....................................

A-1

First Amended Complaint, dated October 5, 2011 ....

A-66

Defendants’ Joint Answer and Defenses, dated
December 2, 2011 ..................................................

A-98

Memorandum in Support of the Motion of the
National Federation of the Blind and Others to
Intervene as Defendants, dated December 6, 2011

A-123

Notice of Motion to Intervene, dated
December 9, 2011 ..................................................

A-127

Exhibit A to Motion –
Declaration of Dr. Marc Maurer, dated
December 6, 2011 ..................................................

A-130

Defendants-Intervenors’ Joint Answer and
Defenses, filed April 12, 2012 ...............................

A-136

Declaration of Laura Ginsberg Abelson, for
Defendants-Intervenors, in Support of Motion for
Summary Judgment, dated June 29, 2012 .............

A-158

Exhibit A to Ginsberg Abelson Declaration –
Excerpts from Transcript of Rule 30(b)(6)
Deposition of Fredric L. Haber, taken on
June 4, 2012
(Reproduced in the Confidential Appendix at pp.
CA-1-CA-32)

ii
Page
Exhibit B to Ginsberg Abelson Declaration –
Excerpts from Transcript of Rule 30(b)(6)
Deposition of Daniel Clancy, taken on
June 1, 2012
(Reproduced in the Confidential Appendix at pp.
CA-33-CA-40)
Exhibit C to Ginsberg Abelson Declaration –
Excerpts from Objections and Responses of the
Individually Named Plaintiffs to DefendantsIntervenors’ First Set of Interrogatories and First
Request for the Production of Documents, dated
May 8, 2012 ...........................................................

A-160

Exhibit D to Ginsberg Abelson Declaration –
Declaration of Georgina Kleege, dated
December 5, 2011 ..................................................

A-165

Exhibit E to Ginsberg Abelson Declaration –
Declaration of Blair Seidlitz, dated
December 6, 2011 ..................................................

A-167

Exhibit F to Ginsberg Abelson Declaration –
Declaration of Courtney Wheeler, dated
December 6, 2011 ..................................................

A-169

Declaration of Dr. Marc Maurer, for DefendantsIntervenors, in Support of Motion for Summary
Judgment, dated June 27, 2012 ..............................

A-171

Declaration of George Kerscher, for DefendantsIntervenors, in Support of Motion for Summary
Judgment, dated June 28, 2012 ..............................

A-180

Declaration of James Fruchterman, for DefendantsIntervenors, in Support of Motion for Summary
Judgment, dated June 28, 2012
(Redacted. Complete version reproduced in the
Confidential Appendix at pp. CA-50-CA-56) .......

A-194

iii
Page
Declaration of Paul Aiken, for Plaintiffs, in Support
of Motion for Summary Judgment, dated
June 28, 2012 .........................................................

A-201

Declaration of T.J. Stiles, for Plaintiffs, in Support
of Motion for Summary Judgment, dated
June 26, 2012 .........................................................

A-213

Exhibit A to Stiles Declaration –
Copyright Registration No. TX0005703845 .........

A-220

Exhibit B to Stiles Declaration –
Agreement, dated February 23, 2010 ....................

A-223

Exhibit C to Stiles Declaration –
Printout from Amazon.com ...................................

A-225

Exhibit D to Stiles Declaration –
Royalty Statement, dated January 28, 2012 ...........

A-227

Declaration of Trond Andreassen, for Plaintiffs, in
Support of Motion for Summary Judgment, dated
June 22, 2012 .........................................................

A-232

Declaration of Owen Atkinson, for Plaintiffs, in
Support of Motion for Summary Judgment, dated
June 27, 2012 .........................................................

A-237

Declaration of Pat Cummings, for Plaintiffs, in
Support of Motion for Summary Judgment, dated
June 28, 2012 .........................................................

A-242

Exhibit A to Cummings Declaration –
Work List by Pat Cummings ..................................

A-247

Exhibit B to Cummings Declaration –
Copyright Registrations .........................................

A-251

Exhibit C to Cummings Declaration –
Letter from Rubin Pfeffer to Pat Cummings,
dated June 30, 2008 ...............................................

A-266

iv
Page
Declaration of Kelly Duffin, for Plaintiffs, in
Support of Motion for Summary Judgment,
dated June 28, 2012 ...............................................

A-269

Exhibit A to Duffin Declaration –
Schedule of Works .................................................

A-274

Exhibit B to Duffin Declaration –
Certificate of Appointment of Estate Trustee and
Will ........................................................................

A-277

Exhibit C to Duffin Declaration –
License issued by the Copyright Board to
University of Athabasca .........................................

A-286

Declaration of Francis Farley-Chevrier, for
Plaintiffs, in Support of Motion for Summary
Judgment, dated June 26, 2012 ..............................

A-289

Exhibit A to Farley-Chevrier Declaration –
License issued by the Copyright Board to
University of Athabasca .........................................

A-294

Declaration of Erik Grundström, for Plaintiffs, in
Support of Motion for Summary Judgment, dated
June 26, 2012 .........................................................

A-297

Declaration of Louise Hedberg, for Plaintiffs, in
Support of Motion for Summary Judgment, dated
June 26, 2012 .........................................................

A-302

Exhibit A to Hedberg Declaration –
Presentation titled, “Sweden’s Digital Library –
ECL a flexible model of Rights Clearance and
Marketing Available” .............................................

A-307

Declaration of Jan Terje Helmli, for Plaintiffs, in
Support of Motion for Summary Judgment, dated
June 27, 2012 .........................................................

A-324

v
Page
Exhibit A to Helmli Declaration –
Agreement between The National Library of
Norway and Kopinor, dated June 27, 2012............

A-328

Declaration of Isabel Howe, for Plaintiffs, in
Support of Motion for Summary Judgment, dated
June 27, 2012 .........................................................

A-334

Exhibit A to Howe Declaration –
Schedule of Works .................................................

A-340

Exhibit B to Howe Declaration –
Documents Evidencing Transfer of Copyrights ....

A-343

Exhibit C to Howe Declaration –
Copyright Registration Certificates .......................

A-365

Exhibit D to Howe Declaration –
Chain of E-mails ....................................................

A-385

Exhibit E to Howe Declaration –
Printout from Hathi Trust Digital Library .............

A-388

Declaration of Roxana Robinson, for Plaintiffs, in
Support of Motion for Summary Judgment, dated
June 26, 2012 .........................................................

A-390

Exhibit A to Robinson Declaration –
Schedule of Works .................................................

A-395

Exhibit B to Robinson Declaration –
Copyright Registrations .........................................

A-398

Declaration of Helge Rønning, for Plaintiffs, in
Support of Motion for Summary Judgment, dated
June 27, 2012 .........................................................

A-413

Declaration of André Roy, for Plaintiffs, in Support
of Motion for Summary Judgment, dated
June 27, 2012 .........................................................

A-418

vi
Page
Declaration of James Shapiro, for Plaintiffs, in
Support of Motion for Summary Judgment, dated
June 25, 2012 .........................................................

A-423

Exhibit A to Shapiro Declaration –
Copyright Registration...........................................

A-427

Declaration of Daniéle Simpson, for Plaintiffs, in
Support of Motion for Summary Judgment, dated
June 25, 2012 .........................................................

A-430

Declaration of Fay Weldon, for Plaintiffs, in
Support of Motion for Summary Judgment,
dated June 25, 2012 ...............................................

A-434

Exhibit A to Weldon Declaration –
Schedule of Works and Copyright Registrations ...

A-439

Declaration of John White, for Plaintiffs, in Support
of Motion for Summary Judgment, dated
June 21, 2012 .........................................................

A-485

Exhibit A to White Declaration –
Schedule of Works .................................................

A-492

Exhibit B to White Declaration –
Copyright Registration...........................................

A-495

Exhibit C to White Declaration –
Agreement, dated November 29, 2011 ..................

A-516

Exhibit D to White Declaration –
Agreement, dated September 1, 2011 ....................

A-525

Declaration of Stanley Katz, for Defendants, in
Support of Motion for Summary Judgment, dated
June 26, 2012 .........................................................

A-534

Exhibit A to Katz Declaration –
Curriculum Vitae of Stanley Katz ..........................

A-540

vii
Page
Declaration of Margaret Leary, for Defendants, in
Support of Motion for Summary Judgment, dated
June 26, 2012 .........................................................

A-555

Declaration of Neil R. Smalheiser, for Defendants,
in Support of Motion for Summary Judgment,
dated June 26, 2012 ...............................................

A-561

Exhibit A to Smalheiser Declaration –
Curriculum Vitae of Neil R. Smalheiser, M.D.,
Ph.D. ......................................................................

A-570

Declaration of Faith C. Hensrud, for Defendants, in
Support of Motion for Summary Judgment, dated
June 28, 2012 .........................................................

A-598

Exhibit A to Hensrud Declaration –
June 2012 Flood in Duluth and the Northland
Rain Reports ..........................................................

A-607

Exhibit B to Hensrud Declaration –
Northland’s NewsCenter Article titled, ”Gov.
Walker Declares State Emergency in Northwest
Wisconsin,” dated June 26, 2012 ...........................

A-610

Exhibit C to Hensrud Declaration –
Superior News Article titled, “UWS Flood
Damage Estimated at $15 Million” .......................

A-613

Exhibit D to Hensrud Declaration –
Northland’s NewsCenter Article titled, “$15
Million in Flood Damages at UWS,” dated
June 25, 2012 .........................................................

A-618

Exhibit E to Hensrud Declaration –
Superior Telegram Article titled, “UWS Recovers
Slowly from Flooding,” dated June 27, 2012 ........

A-620

Expert Report of Professor Daniel Gervais, dated
June 28, 2012 .........................................................

A-622

viii
Page
Exhibit A to Gervais Report –
Curriculum Vitae of Daniel Gervais ......................

A-641

Exhibit B to Gervais Report –
List of Considered Material ...................................

A-659

Exhibit C to Gervais Report –
List of Prior Testimony at Trial or Deposition .......

A-660

Declaration of John Wilkin, for Defendants, in
Support of Motion for Summary Judgment, dated
June 28, 2012 .........................................................

A-661

Exhibit A to Wilkin Declaration –
Cooperative Agreement between Google, Inc.
and Regents of the University of Michigan/
University Library .................................................

A-690

Exhibit B to Wilkin Declaration –
Printout from HathiTrust Digital Library –
“Partnership Community” .....................................

A-739

Exhibit C to Wilkin Declaration –
Center for Research Libraries Global Resources
Network Certification Report of HathiTrust
Digital Repository ..................................................

A-743

Declaration of Joseph Petersen, for Defendants, in
Support of Motion for Summary Judgment, dated
June 29, 2012 .........................................................

A-750

Exhibit A to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff The Authors Guild, Inc. to Defendants’
Second Set of Interrogatories and Requests for
the Production of Documents, dated
April 20, 2012 ........................................................

A-755

ix
Page
Exhibit B to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff The Authors League Fund, Inc. to
Defendants’ Second Set of Interrogatories and
Requests for the Production of Documents, dated
April 20, 2012 ........................................................

A-765

Exhibit C to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff The Australian Society of Authors to
Defendants’ Second Set of Interrogatories and
Requests for the Production of Documents, dated
April 20, 2012 ........................................................

A-775

Exhibit D to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff The Authors’ Licensing and Collecting
Society to Defendants’ Second Set of
Interrogatories and Requests for the Production
of Documents, dated April 20, 2012 ......................

A-784

Exhibit E to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff The Writers’ Union of Canada to
Defendants’ Second Set of Interrogatories and
Requests for the Production of Documents, dated
April 20, 2012 ........................................................

A-793

Exhibit F to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff Trond Andreassen to Defendants’
Second Set of Interrogatories and Requests for
the Production of Documents, dated
April 10, 2012 ........................................................

A-802

x
Page
Exhibit G to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff Pat Cummings to Defendants’ Second
Set of Interrogatories and Requests for the
Production of Documents, dated April 10, 2012 ...

A-811

Exhibit H to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff Erik Grundström to Defendants’ Second
Set of Interrogatories and Requests for the
Production of Documents, dated April 10, 2012 ...

A-820

Exhibit I to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff Angelo Loukakis to Defendants’ Second
Set of Interrogatories and Requests for the
Production of Documents, dated April 10, 2012 ...

A-829

Exhibit J to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff Helge Rønning to Defendants’ Second
Set of Interrogatories and Requests for the
Production of Documents, dated April 10, 2012 ...

A-838

Exhibit K to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff Roxana Robinson to Defendants’ Second
Set of Interrogatories and Requests for the
Production of Documents, dated March 28, 2012 .

A-847

Exhibit L to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff André Roy to Defendants’ Second Set of
Interrogatories and Requests for the Production
of Documents, dated April 10, 2012 ......................

A-856

xi
Page
Exhibit M to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff J. R. Salamanca to Defendants’ Second
Set of Interrogatories and Requests for the
Production of Documents, dated April 10, 2012 ...

A-865

Exhibit N to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff James Shapiro to Defendants’ Second
Set of Interrogatories and Requests for the
Production of Documents, dated April 10, 2012 ...

A-874

Exhibit O to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff Daniele Simpson to Defendants’ Second
Set of Interrogatories and Requests for the
Production of Documents, dated April 10, 2012 ...

A-883

Exhibit P to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff T.J. Stiles to Defendants’ Second Set of
Interrogatories and Requests for the Production
of Documents, dated April 10, 2012 ......................

A-892

Exhibit Q to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff Fay Weldon to Defendants’ Second Set
of Interrogatories and Requests for the
Production of Documents, dated April 10, 2012 ...

A-901

Exhibit R to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff UNEQ to Defendants’ Second Set of
Interrogatories and Requests for the Production
of Documents, dated April 20, 2012 ......................

A-910

xii
Page
Exhibit S to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff SFF to Defendants’ Second Set of
Interrogatories and Requests for the Production
of Documents, dated April 20, 2012 ......................

A-918

Exhibit T to Petersen Declaration –
Excerpts from Objections and Responses of
Plaintiff NFFO to Defendants’ Second Set of
Interrogatories and Requests for the Production
of Documents, dated April 20, 2012 ......................

A-926

Exhibit U to Petersen Declaration –
Excerpts from Transcript of May 22, 2012
Deposition of Pat Cummings .................................

A-934

Exhibit V to Petersen Declaration –
Transcript of May 29 2012 Deposition of Helge
Rønning..................................................................

A-949

Exhibit W to Petersen Declaration –
Article by Peter Leonard and Timothy R.
Tangherlini titled, “Trawling in the Sea of the
Great Unread: Sub-Corpus Topic Modeling and
Humanities Research” ...........................................

A-962

Defendants’ Statement of Material Facts in Support
of Motion for Summary Judgment, dated
June 29, 2012 ......................................................... A-1000
Declaration of Edward H. Rosenthal, for Plaintiffs,
in Support of Motion for Summary Judgment,
dated June 29, 2012
(Reproduced herein at pp. A-1235–A-1250)

xiii
Page
Exhibit 1 to Rosenthal Declaration 1 –
Transcript from the Deposition of T.J. Stiles,
dated May 31, 2012 ............................................... A-1014
Exhibit 2 to Rosenthal Declaration –
Transcript from the Deposition of Helge
Rønning, dated May 29, 2012................................ A-1017
Exhibit 3 to Rosenthal Declaration –
Transcript from the Deposition of Pat Cummings,
dated May 22, 2012 ............................................... A-1020
Exhibit 4 to Rosenthal Declaration –
Transcript from the Deposition of John White,
dated June 8, 2012 ................................................. A-1023
Exhibit 71 to Rosenthal Declaration –
Responses to Plaintiffs’ First Set of
Interrogatories to Defendant HathiTrust, dated
February 8, 2012 .................................................... A-1026
Exhibit 72 to Rosenthal Declaration –
Supplemental Responses to Plaintiffs’ First Set of
Interrogatories to Defendant HathiTrust, dated
April 9, 2012 .......................................................... A-1069
Exhibit 73 to Rosenthal Declaration –
Responses to Plaintiffs’ First Set of
Interrogatories to Defendant Mark G. Yudof
(University of California), dated
February 8, 2012 .................................................... A-1077

1

The Transcript from the Deposition of T.J. Stiles,
dated May 31, 2012 is attached as Exhibit 3 to the
Rosenthal Declaration and the Transcript from the
Deposition of Pat Cummings, dated May 22, 2012 is
attached as Exhibit 1 to the Rosenthal Declaration.

xiv
Page
Exhibit 75 to Rosenthal Declaration –
Responses to Plaintiffs’ First Set of
Interrogatories to Defendant Mary Sue Coleman
(University of Michigan), dated February 8, 2012

A-1096

Exhibit 78 to Rosenthal Declaration –
Responses to Plaintiffs’ First Set of
Interrogatories to Defendant Kevin Reilly
(University of Wisconsin), dated
February 8, 2012 .................................................... A-1148
Exhibit 86 to Rosenthal Declaration –
Google search for “secure cheap advertising” at
http://books.google.com ........................................ A-1165
Exhibit 94 to Rosenthal Declaration –
News Article from the UM Website entitled, “UM Library Statement on the Orphan Works
Project,” dated September 16, 2011....................... A-1168
Exhibit 96 to Rosenthal Declaration –
Press Release entitled, “Google Checks Out
Library Books,” dated December 14, 2004 ........... A-1170
Exhibit 105 to Rosenthal Declaration –
Printout of a Screenshot from the HathiTrust
Website, dated June 28, 2012................................. A-1173
Memorandum of Law by Plaintiffs in Support of
Motion for Summary Judgment, dated June 29,
2012 [Excerpts] ...................................................... A-1175
Plaintiffs’ Statement of Undisputed Material Facts,
dated June 29, 2012
(Redacted. Complete version reproduced in the
Confidential Appendix at pp. CA-57-CA-82) ....... A-1176.1
Declaration of George Kerscher, in Support of
Motion for Summary Judgment, dated
June 28, 2012 ......................................................... A-1177

xv
Page
Exhibit A to Kerscher Declaration –
Curriculum Vitae of George Kerscher ................... A-1191
Declaration of Benjamin Edelman, for Plaintiffs, in
Support of Motion for Summary Judgment, dated
June 27, 2012
(Redacted. Complete version reproduced in the
Confidential Appendix at pp. CA-127-CA-145) ... A-1205
Exhibit A to Edelman Declaration –
Curriculum Vitae of Benjamin Edelman ............... A-1224
Declaration of Edward H. Rosenthal, for Plaintiffs,
in Support of Motion for Summary Judgment,
dated June 29, 2012 ............................................... A-1235
Exhibit 5 to Rosenthal Declaration –
Transcript from the Deposition of Heather
Christenson, dated April 11, 2012 [Excerpts] ........ A-1251
Exhibit 6 to Rosenthal Declaration –
Transcript from the Deposition of Paul Courant,
dated April 24, 2012 [Excerpts] ............................. A-1256
Exhibit 8 to Rosenthal Declaration –
Transcript from the Deposition of Peter Hirtle,
dated April 18, 2012 [Excerpts] ............................. A-1268
Exhibit 9 to Rosenthal Declaration –
Transcript from the Deposition of John Wilkin,
dated April 25, 2012 [Excerpts] ............................. A-1272
Plaintiffs’ Counter-Statement, in Response to
Defendants’ Statement of Material Facts in
Support of Defendants’ Motion for Summary
Judgment, dated July 20, 2012 .............................. A-1288
Plaintiffs’ Opposition to Defendants’ and
Defendants-Intervenors’ Motions for Summary
Judgment, dated July 20, 2012 [Excerpts] ............. A-1307

xvi
Page
Declaration of P. Bernt Hugenholtz, in Opposition
to Plaintiffs’ Motion for Summary Judgment,
dated July 19, 2012 ................................................ A-1310
Exhibit A to Hugenholtz Declaration –
Curriculum Vitae of P. Bernt Hugenholtz .............. A-1320
Declaration of Cory Snavely, in Opposition to
Plaintiffs’ Motion for Summary Judgment, dated
July 20, 2012
(Redacted. Complete version reproduced in the
Confidential Appendix at pp. CA-366-CA-375) ... A-1326
Exhibit A to Snavely Declaration –
Excerpts from the Deposition Transcript of
Benjamin G. Edelman ............................................ A-1336
Declaration of Joseph Petersen, in Support of
Defendants’ Opposition to Plaintiffs’ Motion for
Summary Judgment, dated July 20, 2012
(Redacted. Complete version reproduced in the
Confidential Appendix at pp. CA-376-CA-378) ... A-1345
Supplemental Declaration of John Wilkin, in
Support of Defendants’ Motion for Summary
Judgment, dated July 26, 2012 .............................. A-1348
Reply Declaration of Joseph Petersen, in Further
Support of Defendants’ Motion for Summary
Judgment, dated July 26, 2012 .............................. A-1352
Exhibit B to Petersen Declaration –
Printout from HathiTrust Digital Library –
“Functional Objectives”......................................... A-1354
Declaration of Frederic K. Schroeder, dated
July 23, 2012 .......................................................... A-1357
Transcript of August 6, 2012 Proceedings
[Excerpts] ............................................................... A-1361

xvii
Page
Notice of Appeal, dated November 8, 2012............... A-1366

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Case 1:11-cv-06351-HB Document 87 Filed 06/29/12 Page 10 of 20
Court File No. 01-2529/96

ONTARIO COURT
(GENERAL DIVISION)

at Toronto
IN THE ESTATE OF EDITH MARGARET FOWKE, deceased.
late of the Borough of East York
occupation writer/folklorist
who died on March 28. 1996

CERTIFICATE OF APPOlNTlVIENT
OF ESTATE TRUSTEE WITH A WiLL
Applicant

Address

Occupation

Franklin George Fowke

5 Notley PhlC2
East York, Ontario
M4B2M7

Retired E:lgineer

This CERTIFICATE OF APPOINTMENT OF ESTATE TRUSTEE WITH A WILL is hereby
issued under the seal of the court to the applicant named above, A copy of the deceased's last
will ~ is attached.
DATE

OCTOBER

1ST,

1996

Address of COUrt Office:

439 University Avenue
Suite 301
Toronto. Ontario
M5G lYS

THIS PAGE INTENTIONALLY LEFT BLANK

A-279

I

I

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2012-06-15 11 :15

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

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THIS IS THE LAST WILL AND TESTAMENT of me, EDITH
MARGARET FOWKE, of the Borough of East York, in the Municipality
of

Me~ropolitan

I.

Toronto, in the Province of OntariO, Writer.

I HEREBY REVOKE all former Wills or other testa.mentary

dispositions heretofore made by me and declare this cnly to
~nd

II.

b~

contain my last Will and Testament.
I NOMINATE, CONSTITUTE AND APPOINT my husband, FRANKLIN

GEORGE FOWKE, to be "he sole

E"ecut~ ..

and Trustee of t:his my

Will, provided that if my said husband dies either before or
after me and either before or after obtaining Letters Probate of
this my Will or is or becomes at any time unable or unwilling to
ac;:t or to continue to aet as the El(eeutor and T.-ustee of t:his my
Will, then I NOMINATE, CONSTITUTE AND APPOINT my lawyer, MARIAN
DINGMAN HEBB, of Toronto, Qntar10, to act as

E"ecutr1~

and

Trustee of this my Will in ttHl pla-:e .,Z my said husband, and!
ref~r t~

III.

him or her as

~y Trust~~.

I GIVE, DEVISE AND BEQUEATH all the assets of my estate,

I
I

II

I

i

both real and personal, of whatsoever kind ann wheresoever
situate, incluo:!bg any property o'J~r wh~ch I may have a general
powe. of appointment, to my Trustee upon the following t.usts:
(a) I DIRECT my Trustee to payout of and eharge to the
capital of my 8en~ral estate my just debt:s (including any
ta~es

payable), funeral and testamentary expenses and,

except as hereinafter provided, all estate, legacy
succession and inheritance

ta~es

or duties, whethe. 1-.!j1posed

;a:.;-.tJ . (\'~
,_ I
0

A-280
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I

by or pursuant to the lall of this or any other jurisdiction
whatsoever, that may be payable in connection lIith any
property passing on my death or any

gift or benefit given

or provided by me, either in my lifetime or by survivorship
or by this my Will or
(~)

a~y

Codicil hereto.

I DIRECT my Trus:ee to cionate to the Universiej of

Calgary, my folklore books, folk music records, tapes,
manuscripts and my other literary papers (axcluding all of
my copyrights therein).
(e)

I DIRECT my Trustee to give my jewelry to my niece,

DARLENE SMITH, of Moose Jaw, Saskatchewan.
Cd)

I D:IECT my Trustee to give to my friend,

~RS_

DORIS

SANGSTER, currently residing at 43 Brule Crescent, Toronto,
I
,
,

uny of my clothing which she

wish~s

to have_

'
II
I

1

I

(e)

I DIRECT r.J.1 Truste.e ~o gi.ve the sum of TWENT,? 'THOUSAND

($20,000.00) DOLLARS to each of my ~ie(;es, MRS_ JEA~

I

KNOUREK, of Esterhazy, Saskat~hewan, DARLENE SM!TH of Moose

I:

Jaw, Saskat~hewan, and my n~phew, JAMES MILLHAM, of

II

,

Esterhazy, Saskat'cnewan.
(£)

If any dog or dogs belonging to me survive both myself

and my husband, I DIRECT my Trustee to find a home for t111a
dog or dogs and, for this purpose, sUBgest to my Trustee
that he may wish to consult with MADELINE KRONEY_
discretion my Trustee may pa7 up to TEN THOUSAND

At his
.,

(S10,OOO_00) DOLLARS to a person who will provide a

SUitabl~

I

c1?J:: _
Iryj

A-281
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home for the dog or dogs.
(8)

I DIRECT my Trustee to assign to THE WRITERS' UNION OF

CANADA, my copyrights and the right to receive all royalties
a~d

all

ot~er

reven~e

including but not

arising from my published works,

limit~d

publishers, McClelland

to works published by my current

& Stewart, W. J. Gage, the Waterloo

Music Company, Penguin, NC Press and Doubleday, and from any
works posthumously published.

It is my wish in making this

bequest, without impOSing any legal restrictions, to benefit
a special project or projects being carried on by THE
WRITERS' UNION OF CANADA rather than to contribute to its
general operating fund.

If THE WRITERS' UNION OF CANADA is

unwilling to accept this bequest, or if THE WRITERS' UNION
T~E

1

OF CANADA requests that the bequest be offered to

I,

·1

WRITERS' DEVELOPMENT T1UST before

.'

WR!rERS~ UNION, the~ my Trustee shall offer this beq~est to

I
'I
I,

THE WRITERS' DEVELOPMENT TRUST in place of the WRITERS'

I

II

bei~8

offered to THE

I,

I.

II
II

II

UNION, and if accepted, make such assignment to THE WRITERS' i

"

il

,

DEVELOPMENT TRUST.

I

!I

I
,
,
,

(h)

I DIRECT my Trustee to give to my husband, if he

survives me for more than thirty (30) days, all articles of
personal, domestic and household use or ornament belonging
to me at my death, including consumable stores and any
automobiles and accessories
articles to be kept by him,
o~

as he wishes.

A-282
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2012-06-15 11 :16
I

(i)

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I DIRECT my Trustee to hold all of my property not

otherwise disposed of by this Will for the use and benefit
of my husband until his death.
and from time to time pay to

Illy

My Trustee may at any time
husband or on his behalf

such part or parts of the capital of

th~

residue of my

estate as my Trustee in his uncontrolled discretion , may
consider necessary or acvisable for his benefit.
(j)

Subject to st.:b-chuse (i) herein,

I DIRECT my Trustee

to gi're the residue of 07 estate, with the exception of my
copyrights and the bequest contained in sub-clause (S), to
DR. ALAN NEWCOMBE and DR. HANNA NEWCOMBE, of Dundas,
Ontario, in trust to be used for such charitable purpose or
purposes as they
desirab1~.

i~

their uncon •• olled

d~scretion dee~

I DESIRE, without imposing any lesal or

restrictions an tbe discretion of the NEWCOMBES as

ot~er
~y

trustees, to further the work of organizations sueh as
Amnesty In.crnational, !he Unitarian Service Committee and
the Canadian Peace Alliance.
IV.

III ADCITION

'::0

all othet powers by this my Will or by

any Codicil hereto or by a"y statute or law conferred

On

him my

Trustee shall have the following powers:
(a)

My Trustee may use his discretion in the realization

of my estate with power to my Trustee to sell, call in and
convert into monel any part of my estate not consist'ng of
monel and excluding my copyrights at such time or ti:es,
such Illanner anc!. upon such terms, and either for c~ or

~~\<

Q
~

·F:£". "T' (

i

A-283
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I

credl~

or for part cash and part credit as my Trustee in his

uncontrolled discretion decides upon, or to postpone such
conversion of my

e~tate

o. any part or parts thereof for

such length of time as he may think best, and I. HEREBY
DEC:ARE that my TrUSt0e may

in the form in which

~:

r~tain

any portion cf my estate

may be at my deeth. (not·.iths'ta:ding

that H may not be in the ferm of an investment in which
Trustees are authorized

t~

invest trust funds) for such

length of time as my Trustee may in hiG discretion

de~m

advisable and my Trustee shall not be held responsible for
any loss that may happen to my estate by so doing.
(b)

My Trustee when making investments for my estate shall

not be
b~t

limi~ed

to investments authorized by law for Trustees

may make any investment

whi~h

discretion he considers advisable

in biB uncontrolled
a~d

be liable for any los. tha.c mar happen
coacection

(c)

~ith

my
t~

Trustc~

m)'

shall noe

~st.a.te

in

an; ir..estment hereby authorized ana made by

Hy Tru5te~ in making any division of "'y estate or any

part thereof or in setting aside

o~

paying any share or

interest therein may either wholly or in part divide, set
aside or pay over in specie the assets forming my estate at
the time of such division, setting aside or payment of such
of the said assets as he may deeills advisable, and I
expressly will and declare tha: my Trustee may in his

.~ I

absolute discretion fix the value of Illy estate a.nd ~3.-the'N.,

;-;l1

I

JP) I

A-284
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I

assets thereof and any part or parts thereof for the
purposes of making any such division, setting aside or
payment or for any other purpose in the administration of my
estate and the decision of my Trustee shall be final and
binding
(d)

On

all persons concerned.

So long as any real or leasehold property forming

part of my estate remains unsold my Trustee may let or
y~ar 1:0 year

lease the same from month to month, from

or for any term of years, and subject to such covenants
and conditions as he shall think fit; may
surrenders of leases and tenancies; may

ac~ept

e~pend

money on

repairs and improvements and generally manage the
property; and with a view to the sale thereof

may

gi·;e

any option he may consider advisable.
IN TESTIMONY ~IlE:tEOF ! have to thi.s ::ly last lHll end

TestaClent, written upon ::his and tho £i·;emll1flli'J;\.m:lEf:;D'l:lO,;r,IlIi~<es of
paper, subscribed my name

thi~ ']i=

CCPI~ C~R;'FI£E CONFt1RNI~ A""U

day of

SIG:1ED, PUBLISHED AND DECLARED by the)
said Testatrix, EDITH MARGARET FOWKE, )
as and for he= last Will and Testam~nt)
in the presence of us both present at )
the same time, who at her request, in )
her presence and in the presence of
)
each other heve-llereunto subscribed
)
our names~.s wit~s~es
..
)

? -,

)

..;.,.r",

NAME: ' . .-;-:....-,7

ADDRESS:

:~/JI!/1
~

I)

... ,V(~

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lo, ... o,u ,."

OCCUPATION:

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c.;!)

'':ff~Wi~.A'I!r.''''O;A'J/

NAME:

ADDRESS:

(Shon title of Proceedillg)

ESTATE OF EDITH MAnGARET FOWKE

ONT~RIO

CERTIFICATE OF AI'POINTtlJENT OF
EST,\TE TRUSTEE WITH A WILL

COURT (GENEHAL IJlVISION)
Proceeding c()[l1Illenced al: TORONTO

r

!

J

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!

Out.

Sulicilor fur the Estate uf
ElUTII l\!AaGAlLET FOWRE

Tet: .4(6) 971 6617

!\'15T lX4

l'OK.1 \~U.

0110 Eobert SieheumalUl
179 Joh" 51., Suile 404

Filed 06/29/12 Page 17 of 20

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A-285

A-286
Case 1:11-cv-06351-HB Document 87

Filed 06/29/12 Page 18 of 20

EXHIBIT C

A-287
Case 1:11-cv-06351-HB Document 87

Filed 06/29/12 Page 19 of 20

Copyright Board
Canada

Commission du droit d’auteur
Canada
CANADA

Ottawa, April 30, 2010

FILE: 2009-UO/TI-22
UNLOCATABLE COPYRIGHT OWNERS
Non-exclusive licence issued to the University of Athabasca for the digital reproduction and
communication to the public of community newspapers
Pursuant to the provisions of subsection 77(1) of the Copyright Act, the Copyright Board grants a
licence to the University of Athabasca as follows:
(1) The licence authorizes the digital reproduction and the communication to the public of the
complete contents of the following community newspapers, in their original format, published
between the dates shown, for non-commercial purposes only and subject to the limitations set out
in this licence:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

Novosti (1944-1948) - Croatian
Vaba Estlane (1952-1987) - Estonian
Liekki ((1944-1973) - Finnish
Canadian Uutiset (1919-1927 / 1982-1987) - Finnish
Isien Usko (1936-1978) - Finnish
Vapaus Sana (1921-1930 / 1932-1977 / 1979) - Finnish
Viikkosanomat (1975-1986) - Finnish
Kanadai Magyarsae (1951-1977) - Hungarian
Magyar Elet (1957-1997) - Hungarian
Zwilazkowiec Alliancer (1933-1987) - Polish
Serbian Herald (1946-1948) - Serb
Edmonton Ukrainian News (1928-1971) - Ukrainian
Vilne Slovo (1934-1977) - Ukrainian
Jedinstvo (1948-1970) - Yugoslavian
Nasa Novine (1971-1986) - Yugoslavian
Bavarijas Latviesu Vestnesis (1945-1946) - Latvian
Brivais Latveitis (1948-1949) - Latvian
Liaudies Balsas (1937-1976) - Lithuanian

(2) The licence applies only to issues that are not part of the public domain when this licence is
issued.

AG 0004432

I A-288 I
Case 1:11-cv-06351-HB Document 87

Filed 06/29/12 Page 20 of 20

-2(3) The licence does not authorize
(a) the reproduction of individual works;
(b) the translation of the publications.
(4) The issuance of this licence does not release the licensee from the obligation to obtain
permission for any other use not covered by this licence.
(5) The licence expires in respect of each issue at the time the issue joins the public domain.
(6) The licence is non-exclusive and valid only in Canada. For other countries, it is the law of
that country that applies.
(7) The licensee shall pay $5,000 to Access Copyright, The Canadian Copyright Licensing
Agency, who may dispose of this amount as it sees fit for the general benefit of its members.
Access Copyright undertakes, however, to reimburse 6 ¢ per page to any person who establishes,
within five years of an issue joining the public domain, ownership in that issue. Should the total
amount of claims exceed the licence fee, each claim shall be reduced on a pro rata basis.
(8) The licensee shall ensure that the following notices are prominently displayed on the web
site:
“Some of the content shown is used under a non-exclusive licence issued by the Copyright
Board of Canada in cooperation with Access Copyright, pursuant to subsection 77(1) of the
Copyright Act.”
“A user may not reproduce or otherwise use any of the content found on this website unless
the contemplated use is authorized by the Copyright Act or the content is in the public
domain.”
(9) The owner of copyright in an issue is entitled to end the licence with respect to future uses of
that issue.
(10) The coming into force of this licence is conditional on Access Copyright filing with the
Board a notice of receipt which confirms that the royalties, as specified in paragraph (7) above,
have been received and that Access Copyright undertakes to comply with the conditions set out
in same.

Gilles McDougall
A/Secretary General

AG 0004433

A-289
Case 1:11-cv-06351-HB Document 88

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 8

Index No. 11 Civ. 6351 (HB)

DECLARATION OF FRANCIS FARLEY-CHEVRIER
I, Francis Farley-Chevrier, hereby declare as follows:
1.

I am the Directeur General of Union des Écrivaines et des Écrivains Québécois

(Quebec Union of Writers) (“UNEQ”), 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.

UNEQ is a professional union of writers with its principal place of business

located in Montreal, Québec. UNEQ’s mission is to defend writers’ socio-economic interests
and promote Québec’s literature. With a membership of 1,400 writers of fiction, poetry, drama,
nonfiction, children’s and other books, UNEQ is the primary representative for writers in
Québec, a status recognized by a 1990 Québec Act (RSQ, chapter S-32.01), and for authors
throughout Canada of original French language literary or dramatic works, as certified by the
Canadian Artists and Producers Professional Relations Tribunal in 1996.

A-290
Case 1:11-cv-06351-HB Document 88

Filed 06/29/12 Page 2 of 8

The Works at Issue
4.

Upon information and belief, Defendants have digitized without authority many

books by UNEQ members (the “UNEQ Works”), including at least two books by Daniele
Simpson and Andre Roy, plaintiffs in the instant action and the President and Vice President of
UNEQ.
Harm Resulting From Defendants’ Use Of The Works
5.

UNEQ agreed to join this lawsuit as an associational plaintiff after learning that

print copies of UNEQ 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.
6.

I have reviewed the declarations of T.J. Stiles, Daniele Simpson and Andre Roy,

who are authors and plaintiffs in this litigation. 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.
7.

First, each digital copy of a UNEQ 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. For
example, Defendants could have sought a digitization license from Copibec, a collective rights
society that manages reproduction rights for many authors in Quebec and has bilateral
agreements with foreign collective rights societies such as the Copyright Clearance Center in the
United States. UNEQ is a co-founder of Copibec and occupies three seats on its Board of
Directors.

2

A-291
Case 1:11-cv-06351-HB Document 88

8.

Filed 06/29/12 Page 3 of 8

Second, Defendants’ storage of the UNEQ 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.
9.

Third, Defendants’ various uses of the UNEQ 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.
10.

Fourth, Defendants’ mass digitization and orphan works programs undercut

opportunities for authors to generate royalty streams by entering into collective licensing
agreements. For example, if permitted to proceed, the Orphan Works Project is likely to
negatively impact author revenues 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 price for each permitted use, which
compensation is generally directed to a designated collective management organization.
Attached as Exhibit A 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.

3

A-292
Case 1:11-cv-06351-HB Document 88

11.

Filed 06/29/12 Page 4 of 8

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.
12.

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-293
Case 1:11-cv-06351-HB Document 88

Filed 06/29/12 Page 5 of 8

I declare under penalty of perjury under the laws of the United States of A erica that the
ore going is true and correct.

ated:

Montreal, Quebec
2012

June~,

: I
I I

5

A-294
Case 1:11-cv-06351-HB Document 88

Filed 06/29/12 Page 6 of 8

EXHIBIT A

A-295
Case 1:11-cv-06351-HB Document 88

Filed 06/29/12 Page 7 of 8

Copyright Board
Canada

Commission du droit d’auteur
Canada
CANADA

Ottawa, April 30, 2010

FILE: 2009-UO/TI-22
UNLOCATABLE COPYRIGHT OWNERS
Non-exclusive licence issued to the University of Athabasca for the digital reproduction and
communication to the public of community newspapers
Pursuant to the provisions of subsection 77(1) of the Copyright Act, the Copyright Board grants a
licence to the University of Athabasca as follows:
(1) The licence authorizes the digital reproduction and the communication to the public of the
complete contents of the following community newspapers, in their original format, published
between the dates shown, for non-commercial purposes only and subject to the limitations set out
in this licence:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

Novosti (1944-1948) - Croatian
Vaba Estlane (1952-1987) - Estonian
Liekki ((1944-1973) - Finnish
Canadian Uutiset (1919-1927 / 1982-1987) - Finnish
Isien Usko (1936-1978) - Finnish
Vapaus Sana (1921-1930 / 1932-1977 / 1979) - Finnish
Viikkosanomat (1975-1986) - Finnish
Kanadai Magyarsae (1951-1977) - Hungarian
Magyar Elet (1957-1997) - Hungarian
Zwilazkowiec Alliancer (1933-1987) - Polish
Serbian Herald (1946-1948) - Serb
Edmonton Ukrainian News (1928-1971) - Ukrainian
Vilne Slovo (1934-1977) - Ukrainian
Jedinstvo (1948-1970) - Yugoslavian
Nasa Novine (1971-1986) - Yugoslavian
Bavarijas Latviesu Vestnesis (1945-1946) - Latvian
Brivais Latveitis (1948-1949) - Latvian
Liaudies Balsas (1937-1976) - Lithuanian

(2) The licence applies only to issues that are not part of the public domain when this licence is
issued.

AG 0004432

I A-296 I
Case 1:11-cv-06351-HB Document 88

Filed 06/29/12 Page 8 of 8

-2(3) The licence does not authorize
(a) the reproduction of individual works;
(b) the translation of the publications.
(4) The issuance of this licence does not release the licensee from the obligation to obtain
permission for any other use not covered by this licence.
(5) The licence expires in respect of each issue at the time the issue joins the public domain.
(6) The licence is non-exclusive and valid only in Canada. For other countries, it is the law of
that country that applies.
(7) The licensee shall pay $5,000 to Access Copyright, The Canadian Copyright Licensing
Agency, who may dispose of this amount as it sees fit for the general benefit of its members.
Access Copyright undertakes, however, to reimburse 6 ¢ per page to any person who establishes,
within five years of an issue joining the public domain, ownership in that issue. Should the total
amount of claims exceed the licence fee, each claim shall be reduced on a pro rata basis.
(8) The licensee shall ensure that the following notices are prominently displayed on the web
site:
“Some of the content shown is used under a non-exclusive licence issued by the Copyright
Board of Canada in cooperation with Access Copyright, pursuant to subsection 77(1) of the
Copyright Act.”
“A user may not reproduce or otherwise use any of the content found on this website unless
the contemplated use is authorized by the Copyright Act or the content is in the public
domain.”
(9) The owner of copyright in an issue is entitled to end the licence with respect to future uses of
that issue.
(10) The coming into force of this licence is conditional on Access Copyright filing with the
Board a notice of receipt which confirms that the royalties, as specified in paragraph (7) above,
have been received and that Access Copyright undertakes to comply with the conditions set out
in same.

Gilles McDougall
A/Secretary General

AG 0004433

A-297
Case 1:11-cv-06351-HB Document 89

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 ERIK GRUNDSTRÖM
I, Erik Grundström, 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 a novelist, short-story writer, playwright and former vice-president of

plaintiff Sveriges Författarförbund (“SFF”), a non-profit organization in Sweden dedicated to
securing reasonable remuneration and working conditions for professional writers and
translators. I am the former principal of Skrivarakademin, Sweden’s leading school for creative
writing, and winner of the Arnold Rörling literary prize in 1993.
The Work At Issue
3.

I am the sole author and copyright holder of the fictional work Oss Målvakter

Emellan (Goalkeeper Between Us), and holder of a valid copyright to it under Swedish law.
4.

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

with the commercial exploitation of Oss Målvakter Emellan, 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 Oss
Målvakter Emellan. I never assigned to any third party the copyright to Oss Målvakter Emellan.

19894.300

A-298
Case 1:11-cv-06351-HB Document 89

Filed 06/29/12 Page 2 of 5

Unauthorized Uses Of My Work
5.

It has come to my attention that a print copy of Oss Målvakter Emellan 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 Oss Målvakter Emellan. To date, I
have received no compensation of any kind for Defendants’ digitization and various uses of Oss
Målvakter Emellan.
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 Oss Målvakter
Emellan 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)
my book is no longer in print and I have not yet chosen to make it available in digital form.
However, these differences do not change the fact that Defendants’ actions are causing and
threatening to cause damage to me and to the value of Oss Målvakter Emellan.
8.

While Oss Målvakter Emellan is no longer in print, the harms articulated in the

Declaration of T.J. Stiles nevertheless apply to me because Oss Målvakter Emellan is still
protected by copyright law and I still hold the copyright. Whether Oss Målvakter Emellan is in
print or not, I have the right choose whether or not to engage in licensing agreements for

2

19894.300

A-299
Case 1:11-cv-06351-HB Document 89

Filed 06/29/12 Page 3 of 5

emerging uses of Oss Målvakter Emellan, be they digital archiving, non-consumptive research,
full-text searching, or other derivative uses. By preempting my right to make a decision as to
how I wish to exploit Oss Målvakter Emellan, Defendants have narrowed the scope of my rights
and lessened the strength of my control over my own work.
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 Oss
Målvakter Emellan, I am aware of this option and consider it a possibility for the future. This is
why even my currently out-of-print book is affected by the Defendants’ unauthorized copying.
10.

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

circumstances Oss Målvakter Emellan is scanned, digitized, copied and used. Defendants’
insistence that the new, complex, technologically-enabled uses they intend to make of Oss
Målvakter Emellan 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 Sweden.
11.

Defendants argue that uses of Oss Målvakter Emellan that do not allow

individuals to read the text, such as non-consumptive research and full text searching, do not
inhibit sales of Oss Målvakter Emellan 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 Oss
Målvakter Emellan, 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

3

19894.300

A-300
Case 1:11-cv-06351-HB Document 89

Filed 06/29/12 Page 4 of 5

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 Oss Målvakter Emellan.
12.

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 Oss Målvakter Emellan 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

A-301
Case 1:11-cv-06351-HB Document 89

I declare

lmd~r

Filed 06/29/12 Page 5 of 5

penalty ofperju ry tmder the laws of the United States of America that
the

foregoing is true and conect.

Dated:

7?n-" 01,{ ~t!?>.:z.

/J~->2012

,Swede n

5

19894.3 0()

A-302
Case 1:11-cv-06351-HB Document 90

Filed 06/29/12 Page 1 of 22

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 LOUISE HEDBERG
I, Louise Hedberg, hereby declare as follows:
1.

I am the Director of Sveriges Författarförbund (The Swedish Writers’ Union)

(“SFF”), 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.

SFF is a non-profit organization with its principal place of business in Stockholm,

Sweden. The SFF, first organized in 1893 as the Swedish Association of Authors, has more than
2,750 professional writers and translators as its members and is the leading organization for book
authors in Sweden. In pursuit of its mission of securing its members’ rights to reasonable
remuneration and working conditions, the SFF negotiates standard, minimum-terms agreements
with book publishers, radio and television broadcasters, film producers and others on behalf of
authors and translators. The SFF also defends freedom of expression and of the press by
safeguarding the principles of the Swedish Freedom of the Press Act.

FKKS: 460930.v1

19894.300

A-303
Case 1:11-cv-06351-HB Document 90

Filed 06/29/12 Page 2 of 22

The Works At Issue
4.

Upon information and belief, Defendants have digitized without authority many

books by SFF members (the “SFF Works”), including at least one work by author Erik
Grunstrom, who is the former Vice President of SFF and a plaintiff in the instant action.
Harm Resulting From Defendants’ Use Of The Works
5.

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

print copies of SFF 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.
6.

I have reviewed the declarations of T.J. Stiles and Erik Grundstrom, who are

authors and plaintiffs in this litigation. 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.
7.

First, each digital copy of an SFF 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. SFF
itself administers digital reproduction rights on behalf of many of its members, and SFF works
closely with collecting societies in Sweden that manage the rights to thousands of additional
works.
8.

Second, Defendants’ storage of the SFF 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

2

A-304
Case 1:11-cv-06351-HB Document 90

Filed 06/29/12 Page 3 of 22

gravely impact the market for those works. Although the Swedish market for electronic books is
relatively undeveloped, there has recently been an immense amount of activity in this field, with
authors, publishers, booksellers and libraries each making significant investments to optimize
their relative position in the market when it finally emerges in full force. Hence, the risk of a
project like HathiTrust causing a disturbance to the emerging markets for electronic books in
Sweden is particularly troublesome.
9.

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

opportunities for rightsholders. For example, authors in Sweden routinely grant publishers the
right to display one or two chapters of a book in order to promote sales of the book. Defendants’
full-text search feature is comparable, but in that case there is no license and the service is not
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.
10.

Fourth, Defendants’ mass digitization and orphan works programs undercut

opportunities for authors to generate royalty streams by entering into collective licensing
agreements. For example, the National Library of Sweden entered into a memorandum of
understanding (“MOU”) with the SFF and the Swedish Publishers Association with the goal of
creating a digital library that would make all works published in Sweden available to the public.
The primary focus was on digitizing out of print works and works that had not yet been digitized.
Rights would be cleared through an extended collective licensing agreement. The MOU
contemplates that in exchange for granting rights to the National Library, authors would receive
a set amount per work digitized, along with a copy of the digital file. A copy of a presentation
summarizing the terms of the MOU in English is attached hereto as Exhibit A. Defendants have

3

A-305
Case 1:11-cv-06351-HB Document 90

Filed 06/29/12 Page 4 of 22

undertaken similar activities as those discussed in the MOU, but they have not agreed to
compensate authors for the use of their works or to provide any of the protections contained in
the MOU.
11.

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.
12.

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-306
Case 1:11-cv-06351-HB Document 90

Filed 06/29/12 Page 5 of 22

I declare wldeT penall), of perjw"y under the laws of the United States of Arne rica that tbe
foregoing is true and correct.

Dated:

Stockholm, Sweden
June2i?,2012

LOUISE HEDBERG

5

A-307
Case 1:11-cv-06351-HB Document 90

Filed 06/29/12 Page 6 of 22

EXHIBIT A

Jerker Rydén
Chief Legal Adviser
National Library of Sweden

www.kb.se

Case 1:11-cv-06351-HB Document 90

2011-03-31

”Sweden’s Digital Library”
Sweden s
Library
–
ECL a flexible model
of rights clearance
f i h
l
and making available

Filed 06/29/12 Page 7 of 22
AG 0004404

A-308
~I_I

•

–
–
–
–

The Swedish Writers’ Union,
The Swedish Publishers’ Association,
The National Library of Sweden and
The Visual Arts Copyright Society in Sweden.

www.kb.se

The following Parties have signed a MOU concerning the digitization of the
Swedish literary heritage:

The Parties

Case 1:11-cv-06351-HB Document 90
Filed 06/29/12 Page 8 of 22
AG 0004405

A-309
~I_I

The National Library of Sweden must receive increased financial resources
resources,
through both private and state initiatives.

•

Case 1:11-cv-06351-HB Document 90

www.kb.se

Cooperation with representatives for other right holders and producers.

•

all books published in Sweden should be made accessible
on-line to the public,
free of charge for the readers

The Extended Collective License [ECL] is the best means to solve the copyright
related issues.

–
–
–

The ambition is to create a digital library

•

•

Principles

Filed 06/29/12 Page 9 of 22
AG 0004406

A-310
~I_I

The best way to adapt the making availability of the Digital Library is for the Parties
to negotiate an agreement [ECL] and modulate such an agreement when needed.

•

Filed 06/29/12 Page 10 of 22
AG 0004407

Access to the digital library will have to be adjusted. Conditions will vary from time
to time.

•

Case 1:11-cv-06351-HB Document 90

www.kb.se

The major focus will be to provide access to digitized books that are not available
in print or have not been issued as an E-book.

•

Out of Commerce

A-311
~I_I

To make the books available for research and educationally purposes

But also in the interest of the general public to make the culture heritage of
Sweden available to as many as possible

The Parties agree that the Digital Library can provide a legitimate service where
the market oriented publishing ends

•

•

•

Case 1:11-cv-06351-HB Document 90

www.kb.se

The National Library will digitize the books and provide access to them on the
Internet

•

Different roles

Filed 06/29/12 Page 11 of 22
AG 0004408

A-312
~I_I

Additional financial means will be necessary

Both private as well as government initiatives
initiatives.

Public Private Partnership will be essential to realize the digital library

•

•

•

Financing

www.kb.se

Case 1:11-cv-06351-HB Document 90
Filed 06/29/12 Page 12 of 22
AG 0004409

A-313
~I_I

Gives the National Library a right to digitize and make the works in question
available to the public via a web page.

Remuneration – a symbolic sum of one SEK/work and the digital file.

One purpose with the project – two identify obstacles and to define the roles of the
stakeholders i a f t
t k h ld
in future ECL as well as f t
ll
features conducive f mass di iti ti
d i for
digitisation
and making available

•

•

•

Filed 06/29/12 Page 13 of 22
AG 0004410

A non-exclusive license for a period until a new ECL provision is introduced in the
Copyright Act, and an agreement is concluded. However, the period will be at most
three years
years.

•

Case 1:11-cv-06351-HB Document 90

www.kb.se

A pilot project with a selection of Swedish poetry prose and magazines
poetry,

•

”The F ti ”
”Th Forties”

A-314
~I_I

prohibition against the use of their works.

individual remuneration on the basis of the law

–

–

www.kb.se

Give th t k h ld
Gi the stakeholders an opportunity to assess the commercial value of the work i
t it t
th
i l l
f th
k in
question,
and the time to take necessary actions to put the work on the market, i.e. make the work
commercially available

Opt-Out

–

–

Transparency / Heads Up

Case 1:11-cv-06351-HB Document 90

•

•

Features conducive for mass digitisation
and making available

Filed 06/29/12 Page 14 of 22
AG 0004411

A-315
~I_I

•

www.kb.se

Case 1:11-cv-06351-HB Document 90
Filed 06/29/12 Page 15 of 22
AG 0004412

when an agreement has been concluded concerning the exploitation of works pursuant to
specific articles in the Sw. Copyright Act
with the organization that is most representative for, and best represents, the authors of
the works in the field concerned that are being exploited in Sweden
Sweden.

The extended collective license confers to the user the right to exploit works of the
kind referred to in the agreement despite the fact that the authors of those works
are not represented by the organization (extendedcollective li
t
t d b th
i ti ( t d d ll ti license effect).
ff t)

–

–

• An extended collective license applies

ECL

A-316
~I_I

Case 1:11-cv-06351-HB Document 90

www.kb.se

Therefore it would also apply to manuscripts etc that has been donated by the
rightsholder to the library with the intent that the material should me made
available to the public

•

digitise works in their collections and
make them accessible on the Internet

The new provision does not rely on the material being previously published or
otherwise previously made available to the public.

–
–

A new provision to the Sw. Copyright Act enabling libraries and archives to

•

•

Filed 06/29/12 Page 16 of 22
AG 0004413

To digitise works in library collections and make them
accessible on the Internet

A-317
~I_I

•

–
–
–

–

Case 1:11-cv-06351-HB Document 90

www.kb.se

when an agreement has been concluded in accordance with the conditions set out in
the previous slide and relating to other exploitation of works and
the agreement relates to exploitation within a limited and well defined area,
the ECL effect is a precondition for the exploitation, and
the agreement is in writing and contains information that the agreement is intended to
have an extended collective license effect.

An extended collective license applies also:

A special extended collective
license

Filed 06/29/12 Page 17 of 22
AG 0004414

A-318
~I_I

facilitate rights clearance in connection with various forms of mass use of works and
g
performances protected by copyright so as
to make the great repertoire available in organised form and
on terms that are acceptable to the users, authors and other right holders. See
http://www.wipo.int/meetings/en/2010/wipo_cr_lic_ge_10/program.html

www.kb.se

The EU and many national governments have been encouraging national libraries
to enter into Public Private Partnerships (PPP) to facilitate the large scale
digitization of the each library’s Corpus.
library s

–
–

–

The Special ECL aim to

Case 1:11-cv-06351-HB Document 90

•

•

The Special ECL & PPP

Filed 06/29/12 Page 18 of 22
AG 0004415

A-319

Both the library as well as the private partner in these endeavors will need a
license to disseminate the content.

The Special ECL will be instrumental to enable PPP
PPP.

•

•

Case 1:11-cv-06351-HB Document 90

www.kb.se

These efforts are extremely costly, so the participation of a private partner is, in
most cases, a prerequisite.

•

The Special ECL & PPP

Filed 06/29/12 Page 19 of 22
AG 0004416

A-320
~I_I

individual remuneration on the basis of the law

–

www.kb.se

Filed 06/29/12 Page 20 of 22
AG 0004417

The agreement is by law made binding on non-represented rights holders. But non
represented right holders have a right to:

•

prohibition against the use of their works.

CMO and users conclude an agreement on the basis of free negotiations.
g
g

•

Case 1:11-cv-06351-HB Document 90

–

Collective Management Organization (CMO) is representative

•

Important!

A-321
~I_I

•

–
–

without the possibility of receiving individual claims from ”outsiders” or
p
y
g
having to face criminal sanctions

An agreement allows to legally use all materials,

Important!

www.kb.se

Case 1:11-cv-06351-HB Document 90
Filed 06/29/12 Page 21 of 22
AG 0004418

A-322
~I_I

•
•
•

•
•

Case 1:11-cv-06351-HB Document 90

www.kb.se

Issue: The model is flexible and future-proof
Rights-holder
Rights holder organizations negotiate with users the conditions for a particular use
of works
Agreement applicable to all right holders, even if they are not a member
Possibility for "opt out”
+: Both exclusivity and contractual freedom are respected

Out of Commerce - ECL

Filed 06/29/12 Page 22 of 22
AG 0004419

A-323
~I_I

A-324
Case 1:11-cv-06351-HB Document 91

Filed 06/29/12 Page 1 of 10

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 JAN TERJE HELMLI
I, Jan Terje Helmli, hereby declare as follows:
1.

I am the General Counsel for Norsk Faglitterær Forfatter- og Oversetterforening

(The Norwegian Non-Fiction Writers and Translators Association) (the “NFF”), 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.

The NFF is Norway’s union for nonfiction writers, representing 5,400 authors and

translators. It represents its members’ professional interests by, among other activities,
negotiating minimum-term agreements with book publishers and others, negotiating conditions
for copying books in schools, libraries and elsewhere, and providing legal assistance to its
members in negotiations and conflicts regarding literary rights.
The Works At Issue
4.

Upon information and belief, Defendants have digitized without authority many

books by NFF members (the “NFF Works”), including at least two books by Trond Andreassen

A-325
Case 1:11-cv-06351-HB Document 91

Filed 06/29/12 Page 2 of 10

and Helge Ronning, plaintiffs in the instant action and the General Secretary and former
President, respectively, of the NFF.
Harm Resulting From Defendants’ Use Of The Works
5.

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

print copies of NFF 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.
6.

I have reviewed the declarations of T.J. Stiles, Trond Andreassen and Helge

Ronning who are authors and plaintiffs in this litigation. 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.
7.

First, each digital copy of an NFF 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. For
example, the libraries could have worked with the NFF and/or Kopinor (the Reprographic Rights
Organization for Norway) to negotiate a collective license agreement to digitize and make
various uses of works of Norwegian authors, but instead they simply digitized and use them
without authorization or compensating authors.
8.

Second, Defendants’ storage of the NFF 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.

2

A-326
Case 1:11-cv-06351-HB Document 91

9.

Filed 06/29/12 Page 3 of 10

Third, Defendants’ various uses of the NFF 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.
10.

Fourth, Defendants’ mass digitization and orphan works programs undercut

opportunities for authors to generate royalty streams by entering into collective licensing
agreements. In Norway, the National Library is in the process of digitizing the complete national
literary heritage, not limited to works that are in the public domain. Rights were cleared through
an agreement (the “Kopinor Agreement”) between the National Library of Norway and Kopinor,
on behalf of tens of thousands of Norwegian authors, including members of NFF. In exchange
for granting rights to the National Library, authors receive NOK 0.56 per page (approximately
$0.09) per year. A copy of the Kopinor Agreement is attached hereto as Exhibit A. Defendants
have undertaken similar activities as those licensed by the Kopinor Agreement, but they have not
agreed to compensate authors for the use of their works or to provide any of the protections
contained in the Kopinor Agreement.
11.

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.
12.

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

enormous harm to the rights of authors.

3

A-327
Case 1:11-cv-06351-HB Document 91

Filed 06/29/12 Page 4 of 10

I ded~ ... under penally ofpetj,ry undn llie law'$of !hc Uniled Slalcsof Amtrlca Ihallhc

Daled: 0s1o.l".2"';lIY
Jurw::M,20 12

•

A-328
Case 1:11-cv-06351-HB Document 91

Filed 06/29/12 Page 5 of 10

EXHIBIT A

A-329
Case 1:11-cv-06351-HB Document 91

Filed 06/29/12 Page 6 of 10

Contract regarding the digital dissemination of books (Bokhylla / The Bookshelf)
between

The National Library of Norway
on the one hand,
and
Kopinor
on behalf of the members of
The Norwegian Specialized Press Association, The
Norwegian Association of Fine Arts Photographers, GRAFILL

The

The

Norwegian Organisation for Visual Communication, The
iety of composers

and lyricists, The Norwegian Association of Professional Photographers, The Norwegian NonAssociation, The Norwegian Union of Journalists, The

n, The

The Norwegian Association of Literary Translators, The Association of Norwegian
Norwegian Writers for
Children, The
s

on the other hand.

THE SCOPE OF THE CONTRACT
§1
This is a pilot contract regarding the Bokhylla (Bookshelf) project. The project relates to printed books
published in Norway during the years 1790-1799, 1890-1899 and 1990-1999, including translated
literature. This contract regulates that part of the copyright-protected material covered by the project,
up to 50 000 books with an estimated average of 185 pages.
§2
Subject to the conditions stated in this contract

1,

the National Library of Norway is given the right to make available published copyright-protected
material. This right includes the necessary reproduction of viewing copies based on the digital storage
copies that the National Library of Norway makes pursuant to the regulations issued pursuant to the
Norwegian Copyright Act (FOR 21.12.2001 no. 1563 (§ 1-3)). The contract applies to Norwegian and
foreign publications whose rightsholders are represented by Kopinor, cf Act no. 2 of 12 May 1961 (the
Norwegian Copyright Act) and competition law rules.
The provision stated in the first paragraph means, pursuant to section 16a, cf section 36 (extended
collective licence) of the Norwegian Copyright Act, that published materials created by rightsholders
that Kopinor does not represent are also covered by the contract.

AG 0004039

A-330
Case 1:11-cv-06351-HB Document 91

Filed 06/29/12 Page 7 of 10

HOW THE MATERIAL CAN BE MADE AVAILABLE
§3
Norwegian IP addresses.
§4
The material is to be made available as individual pages in a digital format to be viewed on a computer
screen. The users will be able to search in the text and search for covers, title pages and tables of
contents, as well as to browse sequentially through individual pages. No arrangements are to be made
for downloading or printing the material until the copyright-protected period has expired.
The material will be made searchable via search engines, and solutions to provide information on
where the material can be borrowed or bought will be implemented.

CREDITING OF AUTHORS BY NAME, ETC.
§5
The name of the creator of the work and the

title and source are to be stated in the manner

required by proper usage, cf section 3, section 43a, third subsection and section 11 of the Norwegian
Copyright Act.

RIGHT TO WITHDRAW WORK
§6
Kopinor may withdraw individual work from the scope of the contract during the contract period.

REMUNERATION
§7
An annual amount of NOK 0.56 (in 2009) per page made available is to be paid.
§8
The payment per page is to be adjusted by Kopinor annually on 31 December in accordance with
this. The adjustment is to be made on the basis of the change in the consumer price index from 15
October of last year until 15 October of this year, and correspondingly for future years.
§9
The National Library of Norway is to be invoiced for the prevailing number of pages that have been
made available. The parties are to agree further on the date for reporting and invoicing the pages that
must be paid for. For 2009, a payment is to be made for 8/12 of the year.

AG 0004040

A-331
Case 1:11-cv-06351-HB Document 91

Filed 06/29/12 Page 8 of 10

BREACH OF THE CONTRACT AND DAMAGES
§ 10
Should the contract be breached, a period of 30 days from the date when written notification of this is
received is allowed for rectification.
§ 11
Should a party fundamentally breach the contract and the matter not be rectified pursuant to § 10, the
other party may terminate the contract with immediate effect. Termination is to be declared in writing,
stating the grounds for the termination. Damages for breach of contract may be claimed irrespective of
whether or not the contract is terminated.
§ 12
By entering into this contract, the rightsholders have not renounced their right to claim damages and
bring a civil action against the National Library of Norway for copying that is not permitted by this
contract. If the National Library of Norway has paid a claim from Kopinor relating to such copying,
Kopinor undertakes to pay

claims regarding this utilisation.

§ 13
Should this contract be terminated or expire, the National Library of Norway is obliged to remove from
all copyright-protected materials that cannot,
pursuant to the law or a separate contract with rightsholders, be made available.

OTHER PROVISIONS
§ 14
Kopinor is obliged to pay any claims for payment or damages that the National Library of Norway
receives from Norwegian or foreign rightsholders in so far as the claims relate to a copying or making
available of materials that has been paid for and carried out in accordance with this contract
provisions, cf otherwise section 37 of the Norwegian Copyright Act. The National Library of Norway is
not obliged to pay such claims and Kopinor shall indemnify the National Library of Norway for any
claims regarding costs incurred by the National Library of Norway in connection with such a claim.
Should a claim be received, the National Library of Norway is to reject the claim and refer the claimant
to Kopinor. Claims are not to be paid without consultation with Kopinor. In the case of any dispute
regarding the claim, Kopinor is entitled to intervene.
§ 15
The National Library of Norway and Kopinor are entitled to publish this contract.
§ 16
The parties will continue to cooperate on information about the service. Any external costs resulting
from this are to be agreed on between the parties.

AG 0004041

A-332
Case 1:11-cv-06351-HB Document 91

Filed 06/29/12 Page 9 of 10

§ 17
Pursuant to further agreement, the National Library of Norway will, if requested by Kopinor (on behalf
of a specific rightsholder or a representative of this rightsholder), make available high-resolution
digital copies of the material covered by the contract.
§ 18
The National Library of Norway will, in so far as possible, give Kopinor access to the necessary
statistics for use in distributing the remuneration.

EVALUATION
§ 19
The parties agree to appoint a common committee that is to evaluate the Bokhylla project during the
contract period and upon the expiry of the contract. The costs of any external evaluation will be
divided 50/50 between the parties.

DISPUTE RESOLUTION
§ 20
During the contract period, attempts are first to be made to resolve through negotiations between the
parties any dispute between the parties to the contract regarding its interpretation or existence, a
breach of the contract or a claim that in some other way is based on a contract between the parties
relating to copying.
Should such negotiations fail to succeed, either party may demand that the dispute be resolved
through arbitration. The Arbitration Tribunal is to be composed of three members. The parties are
each to appoint one member and are to jointly appoint a chair. Should the parties fail to agree on a
chairman, this person is to be appointed by the president of the Norwegian Bar Association.
Otherwise, the provisions stipulated in the Norwegian Arbitration Act shall apply.
The parties may each petition for mediation pursuant to section 38 of the Norwegian Copyright Act.

THE DURATION OF THE CONTRACT
§ 21
The contract is valid until 31 December 2011 inclusive, unless the parties agree that the contract is to
be prolonged.

AG 0004042

A-333
Case 1:11-cv-06351-HB Document 91

Two

2

Filed 06/29/12 Page 10 of 10

copies of this contract have been prepared and each of the parties is to retain one copy.

Oslo, 23 April 2009

For the National Library of Norway

For Kopinor

.......................................................................

.......................................................................

Vigdis Moe Skarstein

Yngve Slettholm

National Librarian

Executive Director

AG 0004043

A-334

Case 1 :11-cv-06351-HB Document 93

Filed 06/29/12 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------X
THE AUTHORS GUILD, INC., et ai.,
Plainti ffs,
Index No. II Civ. 6351 (HB)

- againstHA THITRUST, et aI.,
Defendants.
----------------------------------------------------------------X

DECLARATION OF ISABEL HOWE
I, Isabel Howe, hereby declare as follows:

1.

I am the Director of the Authors League Fund, Inc. (the "ALF"), one of the

plaintiffs in the above-captioned action.
2.

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

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 Authors League Fund
3.

Since its founding in 1917, the ALP, which provides assistance to professional

writers and dramatists in severe financial need because of health problems, temporary loss of
income or other misfortune, has drawn most of its support from authors, some of whom leave
their literary estates to the ALl".
The Works At Issue
4.

Unlike the other associations that are plaintitTs in this action, the ALF is not

seeking to assert claims on behalf of any of "members." Rather, the ALF itself owns the
copyrights in and to several works that were scanned and incorporated into HathiTrust without

A-335

Case 1: 11-cv-06351-HB Document 93

Filed 06/29/12 Page 2 of 6

the ALF's knowledge or consent. Attached as Exhibit A is a schedule of works whose
copyrights are owned by the ALF and have been infringed by Defendants (the "ALF Works").
Attached as Exhibit B is documentation evidencing the transfer of the relevant copyrights from
each respective author to the ALF. A copy of the copyright registration certificate for each ALF
Work is attached hereto as Exhibit C.
Harm Resulting From Defendants' Use Of The Work
5.

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

this litigation, including the declarations ofTJ. Stiles, Pat Cummings and Roxana Robinson. 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.

6.

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

purchase or license represents a lost sale to the ALF. Defendants could have purchased a copy
but instcad had it scanned without compensating the ALF.

7.

Second, Defendants' storage of the ALF 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.

8.

Third, Defendants' various uses of the ALF Works undermine various licensing

opportunities for the ALF. 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

2

A-336

Case 1 :11-cv-06351-HB Document 93

Filed 06/29/12 Page 3 of 6

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.

9.

Fourth, Defendants' mass digitization and orphan works programs undercut

opportunities for authors to generate royalty streams by entering into collective licensing
agreements.
10.

Fifth, as explained in more detail below, making books available through the

Orphan Works Program will directly undermine eHarts to revive out of print books and will
impact future book sales.
II.

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

enormous harm to the rights of authors.

The Orphan Works Project
12.

In addition to the harms outlined above and discussed in the individual author

declarations I reviewed, the ALF was directly impacted by Defendants' Orphan Works Project,
as well as by mistakes in the HathiTrust database.
13.

Thc ALF became the owner of the copyrights in and to the works of Gladys

Malvern when she passed away in 1962, having left a Last Will and Testament designating ALF
as the beneficiary of "all rights and royalties and revenues from any sale of rights of any of [her]
books." See Exhibit B.
14.

In the summer or fall of2011, I became aware that one of Ms. Malvern's books,

entitled Good Troupers All, had been listed as an "orphan candidate" in connection with
IIathiTrust's "Orphan Works Program." It was my understanding that HathiTrust intcnded to
make a digital copy ofthe book available October 13, 2011, ninety days after the book was listed

3

A-337

Case 1:11-cv-06351-HB Document 93

Filed 06/29/12 Page 4 of 6

as an orphan candidate. The book was to be made available on the Internet for students, faculty
and users of the University of Michigan library to view, download, print and copy without
providing any compensation to the ALF. Fortunately, after HathiTrust was informed that the
copyright owners of Good Troupers All and other words could be found and objected to the
HathiTrust's plans, the Orphan Works Project was "suspended.
15.

I was particularly troubled by HathiTrust's plans to distribute electronic copies of

Good Troupers All for free because I had recently been contacted by a publisher, Digital Pulse,
which expressed an interest in republishing certain of Ms. Malvern's works, including Good

Troupers All, in print and digital formats. Attached as Exhibit D is an email in which a
reprcsentative of Digital Pulse recounts some of those discussions and reiterates his interest in
bringing Ms. Malvern's works back into print. Defendants' missteps arc indicative of a
concerning lack of thoroughness on their part and an ineffective system of notice for authors
whose works are listed as orphans.
16.

Had Plaintiffs not intervened to stop the Orphan Works Program and, as

Defendants had planned, digital copies of Good Troupers All were made available for others to
view, print and/or download in full, the ALF may have lost the opportunity to license the work
for print and digital distribution. In addition, it is likely that Defendants' unauthorized digital
release of Good Troupers All would have adversely impacted the ALF's anticipated revenues
from future sales of both the paper and electronic versions of the re-released novel.
17.

While this lawsuit apparently caused HathiTrust to halt its Orphan Works

Program and prevented Ms. Malvern's works from being distributed online, I am deeply
concerned about the potential harm to the ALF and others ifthe program resumes, as Defendants
have indicated that they plan to do so.

4

A-338

Case 1:11-cv-06351-HB Document 93

18.

Filed 06/29/12 Page 5 of 6

It is my understanding that Defendants' carelessness also led HathiTrust to

misidentify two of Ms. Malvern's books - Curtain Going Up' and Valiant Minstrel- as works in
the public domain. Before the ALF's attorneys advised HathiTrust of this error, these works
were available in "full view" on HathiTrust's website, which I understand to mean that an
electronic copy of the book could be viewed, downloaded and printed in full. See Exhibit E.
do not know what led HathiTrust to believe that these books were in the public domain, but they
are still under copyright, as evidenced by the copyright registration renewal certificates for the
works that are annexed as Exhibit C.

[THIS SPACE INTENTIONALLY LEFT BLANK]

5

A-339

Case 1:11-cv-06351-HB Document 93

Filed 06/29/12 Page 6 of 6

I declare under penalty of peJjury that the foregoing is true and correct.

Dated: New York, New York
June tb ,2012

ISABEL HOWE

6

A-340

Case 1:11-cv-06351-HB Document 93-1

Filed 06/29/12 Page 1 of 3

EXHIBIT A

1%6/London : W ,H. Allen

The Man Who Loved
His Wife

Vera Caspary

I 967INew York: Putnam

1957INew York : Harper

The Husband

Vera Caspary

-V~;;lc-;;:S;;~ry--'- - --IThe Rosecrest Cell

B
1942 and
20 I 0, there have been
~ozens.of publications
~n multiple languages
In hardcover.
paperback and audio
formats, including:

I 968/London: W, H.
Allen

1972l1'ew York and
London: White Lion
Publishers

Putnam

Hardcopy

Hardcopy

A951486
1967-10-30

A817997
1966-02-15

RE0000314482
1986-12-19

20 12/Paris: Omnibus
(under title "Etranges
Veriles" )

I 1966lNew York :

RE0000273 653
1985-12-30;

AI000000586I
1957-10-21 ;

RENEWALS
A 170748
1943-01-26
R488945
1970-07-15

1959!London:
Hamilton

--~-

A00000 332668
1958-04-16;

Hardcopy

.

I958/Frankfurt: a.M,
Nest-Veri

1957lLondon: H,
Allen

20 12/Paris: Omnibus
(under title "Etranges
Verites")

2006-02-02INew
York: The Feminist
Press

~~

OR ELECTRONIC?
Hardcopy

I

SU~~E~i)~~~-"r":u:,s~:c~:v R~~~~~:;I~~~i~R- :

Filed 06/29/12 Page 2 of 3

--+Between

Laura

1942INew York:
Houghton

FIRST PUBLICATION

Vera Caspary

I--:~~~~~--'--'-I- ---;:~::-----l

EXHIBIT A

Case 1:11-cv-06351 -HB Document 93-1

A-341

1943INew York: J.
Messner

1943INew York: J.
Messner

Valiant Minstrel

Gladys Malvern

14

1945/Philadelphia: Macrae
Smith Cornpany

Curtain Going Up

1979INew York:
McGraw-Hili

Gladys Malvern

•.•• _ _ _

Good Troupers All

H' _ ' _

Gladys Malvern

._ ' _ ~'_' . ' _ ' _ "

F IRST P UBLICATION

The Secrets of GrownUps

H" _ ' H" __

T I TLE

Vera Caspary

" ___

AUTIIOR

,---- -----

-- -

1944INew York: J.
Messner

1966/New York: J.
Messner

1947INew York: J.
Messner

1946INew York: J.
Messner

U.S. COP \ 'RIGIIT

Hardcopy

Hardcopy

Hardcopy

- - ---

R494639
1970-11-09

A 177096
1943-10-26

R494639
1970-11-09

A 177096
1943-10-26

R5 35400
1972-09-15

A 1&9587
1945-08-27

i

'-'

P UB. HARDCOPV
REG ISTRA T IONS OR
OR ELECTRONIC? .......H. _ ·___·R ·H._···__
__ ENEWA LS
.....
..............
Hardcopy
TXOOO0309480
1979-08-20

MOST RECENT

Filed 06/29/12 Page 3 of 3

SU'BSEQUENT
PU'B(S).

Case 1: 11-cv-063S1-HB Document 93-1

A-342

A-343

Case 1: 11-cv-06351-HB Document 93-2

Filed 06/29/12 Page 1 of 22

EXHIBITB

A-344

Gooe 1 :11-cv-06351-HB Document 93-2

LAST WILL

I~ND

Filed 06129112 (

~of 2~

TESTJI,HENT

I, VERA CASPARY GOLDSHITH, also known as VERA
CASPARY I

residing in the City, County and State of Ne.·.v York,

do hereby make t publish and declare this to be my Last l'1ill
and Testament, hereby revoking all Wills and Codicils by me
at any time heretofore made.

FIRST:

I

direct that all my just debts,

the expenses of my last illness and funeral and the expenses
of administering my estate be paid as soon after my death as
may be convenient.

SECOND:

I give and bequeath the follo'l-ling:

A.

My oil painting entitled "A

h'alkby the Canal" by Camille Bombois to BERNARD SOLOMON.

It

is my '<fish, but I "do not direct, that if he does not wish to
keep this painting for hill1sclf I

'.:.hat it be sold by hi::", ar.d the

proceeds given to any Jewish cause he chooses.
B.

One (1) copy of each of my

novels to the UNIVERSITY OF 1HSCONSIN CENTER FOR THEATRE
RESEARCH, presently located at 6173 Vilas Communication Hall,
Madison, Wisconsin

53706.

A-345

Case 1:11-cv-06351-HB Document 93-2

C.

Filed 06/29/12 Page 30f22

My unpublished typescripts,

notes, discarded pages, etc., books carrying comment. about my
\vork and anthologies in which my work is included to the
UNIVERSITY OF lVISCONSIN CENTER FOR THEATRE RESEARCH, presently
located at 6173 Vilas Communication Hall, Madison, Wisconsin 53706.
All the rest of my tangible

D.

personal property not hereinabove effectually disposed of, to
my Executors hereinafter named, to be distributed in such manner
as they believe I would wish.

Any property not so distributed

shall be sold by my Executors and the proceeds added to my
residuary estate.

THIRD:

I

give and bequeath the following

legacies:
A.

To my step-son, HICHAEL

Goldsmith, the sum of Five Thousand ($5,000.00) Dollars, if
he shall survive me.
B.

the sum of One Thousand

To YJ..l',RY GOLDSNiTH STEPHENS,

(~l.OOO.OO)

Dollars, if she shall

survive me.
C.

To my housekeeper, ROSA

DELLA PORTA , tlle sum of One Thousand ($1,000. 00) Dollars.

FOUHTH:

I

direct my Executor to return

-2-

A-346

',Case 1:11-cv-06351-HB Document 93-2

Filed 06/29/12 Page 4 of 22

to DR. lHLLIAM E. DEUTSCH, presently of 232

Sh~ridan

Hoad,

Evanston, Illinois 60202, the Pembroke table in my living
room.

'FIFTH:

~

A.

I give and bequeath all future

royalties which may accrue to me on the novel "LAURA" and the
stage play "LAURA" to GEOHGE Sl.\LAR, presently of 530 North
Fuller Avenue, Los Angeles, California 90036, during his lifetime.
Upon his death, or, if he shO':ll not survive me, such royalties are
to be given to the AUTHORS LEAGUE FUND, presently located at 234
West 44th Street, New York, New York 10036.
B.

I give and bequeath all other

future royalties which may accrue to me to the AUTHORS LEAGUE

-

FUND, presently located at 234 \'lest 44th Street, Ne ...' York,
New York 10036.

SIXTH:

I give, devise and bequeath all of

the rest, residue and remainder of the property, real and personal and wheresoever situate, of "'hich I may die seized or

~~possessed'
/'

or to which I may bo oati Clod et the time of my

death, including lapsed legacies hereinafter referred to
as my "residuary estate", as follo'''s:
A.
my gOd-sOn, DANIEL

SKLAI~,

One-fourth (1/4) thereof to

or, if he shOUld not survive me, to

-3-

A-347

-Case 1:11-cv-06351-HB Document93-2

my god-son, ZACHARY

Filed 06/29f.12 Page 5 of 22

SKL1~.

B.

One-fourth (1/4) thereof to

my god-son, ZACHARY SKLAR, or, of he should not survive me to
my god-son, DANIEL SKLAR.

C.

One-fourth (1/4) thereof to

OSCAR BRANN, of, if he should not survive me, to

BL~~CHE

(O'SHEA) BRANN.

D.

One-fourth (1/4) thereof to

BLAl\CHE (O'SHEA) BRANN, or, if she should not survive me, to
OSC.;P. BRANN.

SEVENTH:

I appoint my friend, KAY KOMINSKY,

and my gOd-sollS ,DANIEL SI{LAR and ZACHARY SKLAR, to be the
CO-Executors of this my Hill.

In the event that any shOUld

for any reason fail to qualify or cease to act, the remaining
nominated fiduciary or fiduciaries shall serve alone.
I direct that no bond or other
security shall be required of any Executor hereunder in any
jurisdiction, and that no one of them shall be required to
render periodic accounts in any court.
pO\,ers

I

All the duties and

discretionary and othen;ise, imposed or conferred

upon my Executor shall devolve upon his respective successor
and successors.

EIGHTH:

r direct that all inheritance,
-4-

A-348

Case 1: 11-cv-06351-HB Document 93-2

Filed 06/29/12 Page 6 of 22

estate and other death taxes (including any interest and
penalties thereon) imposed by any

jurisdic~ion

whatsoever by

reason of my death upon or with respect to any property includible in my estate for the pruposes of any such taxes,
whether such property passes under or outside, or has passed
outside, the provisions of this Will shall be paid from my
residuary estate and shall not be apportioned among any of
the non-residuary beneficiaries cf this Will.

NINTH:

In addition to any other powers

granted by this \'':ill or authorized by law, I11Y Executor shall
have the fOllO,-1irig pOl"ers and discretion which shall extend

.

.

to all principal and income held hereunder in any capacity
or for any purpose until the final and outright distribution
thereof, and which my Executor may exercise in his sole and
absolute discretion, without application to or approval by
any court:
A.

To retain and to purchase or

othen,ise acquire stoCKS, ,.;hether common or preferred, bonds,
obligations, shares or interests in investT:'lent companies or
investment trusts, or any other property, real or personal,
of whatsoever nature, wheresoever situated, ,vi thout duty to
diversify and ,,,hether or not the same may be authorized by
la\V for the investment of estates and trust funds.
-5.-.

A-349

Case 1:11-cv-063S1-HB Documenf93-2 . Filed 06/29/12 Page 7 of 22

B.

To deposit funds in the

savings department of any bank 1vi thout limit as to duration
or amount.
C.

To sell at public or private

sale, exchange, mortgage, lease without statutory or other
limitation as to duration, partition, grant options on l

alter,

improve, demolish buildings or. otherwise deal with any property,
real or personal, upon any terms and whether for cash or upon
credit.
D.

To exercise in person or by

proxy all voting, conversion, subscription or other right
incident to the ownership of any property, including the right
to participate in any corporate reorganization, merger or other
transaction and to retain any property received thereunder and
the right to delegate discretionary power.
E.

To sell any property at such

price as my Executor shall determine.
F.
claim~;

To compromise or arbitrate

to prepay or accept prepayment of any debt and to

enforce or abstain

fro~

enforcing, extend, modify or release

any right or claim or to hold any claim after maturity without
extension, with or without consideration.
G.

To execute and deliver deeds

or other instruments; with or without covenants, warranties
and representations and with or without consideration, in-

-6-

A-350

Case 1:11-cv-06351-"HB Document 93-2

Filed 06/29/12 Page 8 of 22

eluding releases which shall discharge the recipient from
the responsibility for property receipted for thereby.
H.

To abstain from rendering or

filing any inventory or periodic account in any court.
I.

To make division or distribu-

tion in cash or in kind or partly in each.

J.

To employ investment counsel,

accountants and other agents and to determine and pay reasonable
compensation for their services.
K.

Generally, to exercise in

good f'ai th and 'vi th reasonable care all investment and
administrati V8 pOiVers and discretion of an absolute O\mer
which may la,,,fully be conferred upon a 'fiduciary.

TENTH:
Will shall be construed as

All references herein to this
~eferring

to this Will and any

Codicil or Codicils hereto which I may hereafter execute.
l,\'henever necessary or appropriate,
the use herein of any gender shall be deemed to include the
other gC'!1ders and the use therein of ei t,her the singular or
the plural shall be deemed to include the other.

IN HITNESS hTHEREOF, I have hereunto subscribed my

-7-

A-351

·Case1 :11-cv-06351-HB Document93-2

Filed"06/29f12 Page90f22

name and affixed my seal to this my Last Hill and Testament,
this

1\\ C;_~
..

day of

I

in the year One

Thousand Nine Hundred and Eighty-Four.

¥ ~€J)o. CaAfO-ty ~I ~
r~~Via ~~".,,) t;"(~h\t"
)'To~~ ~rb

-8-

(L. S. )

A-352

'Case 1:11-cv-06351-HB Document 93-2

Filed 06/29/12 Page 10 of 22

SIGNED, SEALED, PUBLISHED
and DECLARED by the above-named
Testatrix, VERA CASPARY GOLDSMITH,
as and for her Last Will and Testament in our presence, and we,_ at
her request, in her presence and in
the presence of each other, do
hereunto sign our names as attesting
witnesses and add opposite thereto
our respectiy~ place of residence,
. all this Q.\~ day Of:rUMA.
. 1984.

iding

atn . ~~ '1':!\~

residing at

S-~-!" ti~""
N\11~

______________________________residing at_______________________________

A-353

C-ase 1:11-cv-06351-HB Document 93-2

Filed 06/29/1-2 Page 11 of 22

STATE OF NEvi YOR,K )

)

ss. :

COUNTY OF NE1'1 YORK)

Each of the undersigned, individually and sevGrally,
being duly sworn, deposes and says:

The within Will was subscribed in our presence and
sight at the end thereof by VERA CASPARY GOLDSl'UTH, the 1-.'i thin

.

~\.

named testatrlx on the ~ \ at

~~

&t- ~~ ~

day

, 1984,

~,y, ~'yl

Said testatrix at the time of making such sUbscription
declared the instrument. so subscribed to be her Last Will.

Each of the undersigned thereupon signed his name as
a witness at the end of sai~ Will, at the request of said
testatrix and in her presence and sight and in the presence and
sight of each other.

Said testatrix was, at the tLne of so executing said
Will, over the age of

eigh~een

years, and, in the respective

opinions of the undersigned, of sound mind, memory and understanding and not under any restraint or in any respect incompetent to make a Will.

A-354

Case 1 :11-cv-06351-HB Document 93-2

Filed 06/29/12 Page 12 of 22

Said testatrix, in the respective opinions of the
undersigned, could read, write and converse in the English
language and was suffering from no defect of sight, hearing
or speech, or from any other physical or mental impairment
which would affect her capacity to make a valid Will.
Will was executed as a single, original instrument

The

and was

not executed in counterparts.

Each of the undersigned was acquainted with said
testatrix at such time, and makes this affidavit at her request.

The within Will was shown to the wldersigned at the
time

th~s

affidavit was made, and was examined by each of them

as to the signatures of said testatrix and of the undersigned.

The fo"regoing instr.ument .tas executec1 by said testatrix
and witness by each of the undersigned affiants under the
supervision of Robert H. Siegel, an attorney-at-law.

¥~~Gt!~k\n
Severally sworn to before me
this ~\ ~ day of
1984.

'jV.'wCii

Notary Public

A-355

Filed 06/29/12 Page 13 of 22

Case 1:11-cv-06351-HB Document 93-2

AGREEMENT
AGREEMENT made the

6

day of Decerrber

1991, by and

among the Authors League Fund, a New York Non Profit

, with

a principal place of business at 234 west 44th Street, New
York, New York 10036 (the "Fund"), Daniel Judah Sklar, Zachary
Sklar and Judy Sklar Rasminsky (collectively the "Sklars"),
Blanche Brann and Oscar Brann, residing at c/o Daniel Judah
Sklar, 49 Grove street, New York, New York.

R E CIT ALB

This Agreement is made premised on the following facts:

l.
("C~spary")

Vera Caspary Goldsmith, a/k/a Vera Caspary
was the author of the novel "Laura" and co-author

with George Sklar of the stage play "Laura".
2.

All dramatic rights in the novel have merged in

the stage play.
3.

By testamentary gift from Caspary:
a)

The Fund owns 100% of the royalties from the

novel "Laura", and 50% of the royalties from the stage play
"Laura", and 100% of
b)

~

royalties accruing to Caspary.

Daniel Judah Sklar, Zachary Sklar, Blanche

Brann and Oscar Brann, as residuary beneficiaries of the
estate of Vera Caspary, own 100% of all copyrights in literary
properties created by Caspary other than the stage play
"Laura", but not including any royalties deriving therefrom.

A-356

Case 1: 11-cv-06351-HB Document 93-2

a)

Filed 06/29/12 Page 15 of 22

The Sklars may engage agents and attorneys to

represent the stage play on customary terms and conditions,
but the Sklars shall make no charge for their own services in
supervising the lease, licensing, exploitation and turning to
account of the stage play.
b)

No grant of rights in the stage play may be

conditioned upon the engagement of any particular person in
any capacity without the consent of the Fund and none of the
Sklars may be engaged in any capacity in connection with any
use of the stage play without the consent of the Fund.
c)

The net proceeds from the lease, licensing,

exploitation and turning to account of the stage play, after
reasonable attorneys fees and customary agents commissions,
shall be divided equally between the Sklars on the one hand
and the Fund on the other.
d)

The Sklars shall maintain accurate books and

records of all transactions pertaining to any exercise of the
authority herein granted and the Fund shall have the right to
examine all such books and records upon reasonable notice.
e)

Wherever possible, the Sklars shall use their

reasonable efforts to obtain for the Fund direct accounting
and payment of any monies due it by reason of any disposition
of rights in the stage play made hereunder, but. the Sklars
make no representation or warranty that the same can or will
be accomplished.

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Case 1:11-cv-06351-HB Document 93-2

c)

Filed 06/29/12 Page 14 of 22

Daniel Judah Sklar, Zachary Sklar, Blanche

Brann and Oscar Brann, as residuary beneficiaries of the
estate of Vera Caspary, own 50% of the copyright in the stage
play HLaura H, but not including any royalties deriving
therefrom.
4.

By testamentary gift from

Ge~rge

Skl5E' Daniel

Sklar, zachary Sklar and Judy Sklar Rasminsky own 50% of the
copyright in the stage play wLaura w and 50% of the royalties
deriving therefrom.

,...

AGREEMENT

In consideration of the premises and for good and
valuable consideration, the parties hereto agree as follows:
1)

Daniel Judah Sklar, Zachary Sklar, Blanche

Brann and Oscar Brann, without warranty or recourse, assign to
the Fund the copyrights referred to in Recital No. 3(b) above.
2)

The Fund hereby agrees that the Sklars are the

exclusive agent for, and shall exercise sole control over
decisions regarding, the lease, license, exploitation and
turning to account of all of its rights jn the stage play
HLaura H throughout the world for the full term of copyright
therein and any renewal thereof.

The said agency is coupled

with an interest and is irrevocable, but is subject to the
following:

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Case 1:11-cv-06351-HB Document 93-2

3.

Filed 06/29/12 Page 16 of 22

Each party hereto forever releases and

discharges every other party hereto from all actions, suits
and claims whatsoever arising out of any party's action or
omission to act in respect of any of the copyrights referred
to herein.
4.

All notices which either party may desire to

give to the other shall be in writing, addressed to that
address for the intended recipient set forth above or such
other address as either party may, from time to time, fix for
himself by notice in writing.
5.

This Agreement shall inure to the benefit of,

and be binding upon the parties hereto and their respective
heirs, licensees, successors and assigns, and shall be
governed by and construed according to the laws of the state
of New York applicable to contracts made and wholly to be
performed therein.

Jurisdiction over any controversy or claim

arising under this instrument, its construction, enforcement
or breach shall be exclusively vested in the courts of the
state of New York.

Service in any action or proceeding may be

made by registered mail addressed as set forth for notices
pursuant to paragraph 4 above.

Service by registered mail

shall be deemed to be personal service, with the same force
and effect as if personally delivered to the recipient in the
State of New York.

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