Authors Guild, Inc. v. Hathitrust

Filing 222

DEFERRED APPENDIX, volume 3 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.[978658] [12-4547]

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COOPERATIVE AGREEMENT

This COOPERATIVE AGREEMENT (the "Agreement") is entered into by and between Google Inc., a
Delaware corporation with offices at 1600 Amphitheatre Parkway, Mountain View, California 94043
("Google"), and the Regents of the University of Michigan/University Library, Ann Arbor Campus, with its
principal offices at 818 Hatcher South, Ann Arbor, MI 48109-1205 ("U of M"), and is effective on the date
of the execution of this Agreement (the "Effective Date"). Google and U of M herein are sometimes
referred to hereinafter individually as a "Party" and collectively as the "Parties".

1. U of M is a leading academic institution and has amassed an enormous collection of works in various
media.

2.

Google is a leader in providing the public with access to billions of web pages through a search
engine that processes requests in less than half a second, and responds to more than 150 million
search queries per day.

3. Google and the U of M share a mutual interest in making information available to the public . The
Parties believe that working collaboratively will create mutually beneficial knowledge about standards
and automated methods for organizing and indexing digitized works and to refine standard
requirements for repositories of digital content.
4.

Accord ingly, the Parties desire to enter a nonexclusive agreement whereby Google will digitize works
from the U of M collection to include them in Google's search services, and to make them available to
the UniverSity of Michigan for preservation, archival or other purposes of its choosing (e.g., inclusion
in Michigan's search services) .

1.
DEFINITIONS.
Capital ized terms will have the meanings set forth below unless defined
elsewhere in the Agreement.

1.1 "Available Content" means the U of M print book and journal Collection, but excludes Special
Collections materials. Available Content also includes U of M Digital Content in an amount corresponding
to the amount of digita l content that Google provides to U of M via the U of M Digital Copy.
1.2 "Brand Features" means trade names, trademarks, service marks, logos, and other distinctive
brand features, of which Google's Brand Features include but are not limited to Google, the Google logo,
other marks that incorporate the word "GOOGLE," PAGERANK, and of which U of M's brand features
include but are not limited to the University of Michigan name, University of Michigan identification marks,
and the University Library name and logo.
1.3 "Digitize" means to convert content from a tangible, analog form into a digital representation
of that content.
1.4 "Distribution Price" means an amount equal to or greater than a per-page amount multiplied
by the number of Digitized pages involved. The per-page amount shall be equal to the amount charged
by Google for distributing to the general public the same Digitized pages ("Google Amount"). If there
exists no Google Amount for the same Digitized pages, the per-page amount shall be the amount
charged by Google for distributing to the general public similar pages digitized pursuant to the same
Project Plan ("Similar Google Amount"). To the extent no Google Amount or Similar Google Amount
exists, the per-page amount shall be an amount mutually agreed upon in good faith by Google and
U of M.

1.5 "End User" means a person or entity that uses the Services.

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1,6 "E nterprise Search Services" means the Search Services provided by Google to compan ies
for use by emplo yees of those companies and others,
1,7 "Google Digital Copy" means a digital copy re tained by Google of the Available Content that
is Digitized by Google,
1.8 "Google Search Services" means the Search Services provided by Google directly through
the web sites located at www ,google,com and corresponding international and other domains (e,g "
www .google,de, www,google,info, etc),
1,9 "U of M Collection". means materials identified in section 1.2 above.
"U of M Digital Copy" means a digital copy transferred by Google to U of M of the
1.10
Available Content that is Digitized by Goog le.
1.11
"Partner Search Services" means the Search Services provided by Google to an End
User via a partner site that has entered into an agreement with Google to provide some or all of the
Search Services through its own website.
1.12
"P ilot Project" means the onsite work at the University of Michigan, beginning from the
Effective Date of th is contract and ending on April 15, 2005.
1.13

"Project" means a project for Digitizing certain Selected Content.

1,14

"Initial Term" means the first six years of the Project. including the Pilot Project period.

1,15
"Project Form" means a form, pursuant to this Agreement, that contains the details of a
Project Plan, sim ilar to the sample attached as Exhibit A.
1.16
"Project Plan" means a plan for implementing a Project. The Project Plan shall include
the fOllowing : (1) instructions by U of M regarding how the Selected Content is to be collected and
returned by Google; (2) if required , the amount of time available to U of M for performing conservation
efforts; (3) the amount of time available to Google from receipt of the Selected Content until it is due to be
returned to U of M; and (4) a budget for the Project .
1,17

"Requested Portion" means a portion of the U of M Digita l Copy requested by a third

party.
1.18
"Search Services" means the search services provided by Google to an End User
pursuant to which the End User can view, inter alia, content conSisting of or derived from the Google
Digital Copy (subject to the restrictions set forth in th is Agreement) in response to search or browsing
requests,
1.19
"Selected Content" means the portion of the Available Content that Google desires to
Dig itize or incorporate into the Services , both collectively and its component parts, includ ing any and all
other works of authorsh ip included there in.
1,20
"Services" means collectively the Google Search Services, the Partner Search Services,
and the Enterprise Search Services.
"U of M Digital Content" means content that U of M already has in its possession in
1.21
Digitized form, as of the Effective Date.
1.22
"Website," 'World Wide Web," "the Internet," and other technical terms in this Agreement
and project plans refers to the current common usage of such terms and successor facilities of equal or
greater capability.

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RESPONSIBILITIES

2.1 Identifying Content to be Digitized. The parties shall cooperate to identify Available
Content to be Digitized . Upon agreeing to such Selected Content, the Parties shall cooperate in good
faith and with diligence to develop a timetable for completing the Project Plan for the Selected Content.
The Parties shall then memorialize the Project Plan in a Project Form .
2.2 Collecting the Selected Content Upon commencement of a Project. U of M shall be
responsible for performing any conservation efforts that U of M determines are required for the associated
Selected Content. On a ro ll ing basis, as this conservation effort is completed , U of M shall provide the
conserved Selected Content to Google for Digitizing. If agreed upon by the parties in a particular Project
Plan, this collection function may instead be assigned to Google.
2.3 Locating the Digitization Operation. For each ProJect, U of M shall attempt in good faith to
provide Google with adequate physical space to Digitize the Selected Content. If U of M is unable to
provide such space, U of M shall cooperate with Google to identify and obtain space that Google can use
at reasonable ra tes. The location of any such physical spaces shall be mutually agreed upon by the
parties .
2.3.1
Transporting and Storing the Selected Content. On a Project-specific and
material-specific basis, U of M may authorize Google to remove some or all of the Selected Content from
U of M premises to perform digitization in facilities controlled by Google. All risk of loss, damage, or
destruction of the materials will lie with Google from the time Google accepts possession of the materials
until such time as they are returned to U of M on U of M premises . Google will carry reasonably sufficient
insurance against the risk of loss, damage or destruction of materials entrusted to Google's cus tody. In
general, for all materials, Google will provide a transport method and temporary storage area that is
reasonably clean, dry, cool, free from insects and other pests, protected from fire, and secure against
theft and vandalism. Because the value of the materials and the environmental conditions necessary for
transporting them and maintaining them in good condition will vary based on the particular materials
involved, U of M will inform Google of the requirements for transport and storage of particular materials on
a Project-specific basis. For insurance purposes, U of M (relying on guidelines from its Risk Management
office) will provide Google with a good faith estimate of the value of any materials approved for removal
from U of M premises, and will provide Google with an itemized list of any such materials.
2.3.2
On-Site (i.e., not transported) Conversion of Selected Content. The terms in
2.3. 1 regarding insurance, accessibility to print materials for U of M users, and precautions taken to
ensure protection of the materials shall also apply to materials digitized on-site in the Buhr storage facility.
2.4 Digitizing the Selected Content. Google will be responsible for Digitizing the Selected
Content. Subject to handling constraints or procedures specified in the Project Plan, Google shall at its
sole discretion determ ine how best to Digitize the Selected Content, so long as the resulting digital files
meet benchmarking guidelines agreed to by Google and U of M, and the U of M Dig ital Copy can be
provided to U of M in a format agreed to by Google and U of M. U of M will engage in ongoing review
(through sampling) of the resulting digita l files, and shall inform Google of files that do not meet
benchmarking guidel ines or do not comply with the agreed-upon format. Should U of M encounter a
persistent failure by Google to meet these guidelines or supply the agreed-upon format, U of M may stop
new work until this failure can be rectified. Any restrictions on Google's discretion shall be specified on a
project-by-project basis via the corresponding Project Form(s) or by amendment to this Agreement.
2.5 U of M Digital Copy. Google agrees to provide to U of M a copy of all Digitized Selected
Content that has been "Successfully Processed" within thirty (30) days after the Selected Content is
Digitized, or in a timeframe mutually agreed by the Parties . Digitized Selected Content is "Successfully
Processed" when Google determines it has satisfactorily gone through all stages of Google's digitization ,
post processing and quality assurance procedures (not to exceed thirty days for material received by
Google, unless otherwise agreed to by the parties) . With in th irty (30) days after the Selected Content is
Digitized , or in a timeframe mu tually agreed by the Parties, Google shall provide the U of M Digital Copy

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to the U of M. Unless otherwise agreed by the Parties in wri ting, the U of M Digital Copy will consist of a
set of image and OCR files and associa ted information ind icating at a minimum (1) bibliographic
information consisting of the title and author of each Digitized work, (2) which image files correspond to
that Digitized work, and (3) the logical order of those image files. Google shall provide the U of M Digital
Copy via a network conne ction, or in any other manner mutually agreed upon by the Parties .
2.5.1 Google may delay transferring Digitized Selected Content to U of M if it decides not
to use tha t content due to a dispute with a third-party. In this case , Google must inform U of M, in writing ,
of the details of the dispute and the specific content to be delayed . Google may delay transfer of this
content until such time as Google makes any use (including indexing) of that Digitized content (or the
same content acquired from another source, if that Digitized content is in the public domain or out-ofprint) beyond storage in a dark archive.
2.5.2
Within 3 years of the time Google has transferred Digitized Selected Content to U of
M, if Google decides not to use that content due to a dispute with a third-party, U of M will destroy that
content (so long as it is in print and protected by copyright) from the U of M Digital Copy. In this case ,
Google must inform U of M in writing of the details of the dispute and the specific content to be destroyed.
If, at any time, Google subsequently makes any use (including indexing) of that Digitized content (or the
same content acquired from another source , if that Digitized content is in the public domain or out-ofprint) beyond storage in a dark archive , Google will retransfer that Digitized Content to U of M.
2.6 Returning the Selected Content. Once completed with the Digitizing process , Google will
be responsible for returning the Selected Content to the source from which Google obtained it and in the
like manner in which it was collected, within three (3) weeks unless otherwise specified in the Project
Form or otherwise agreed upon by the parties . If Google reasonably determ ines that it will require longer
to Dig iti ze some or all of the Selected Content than the time frame set forth in the Project Form, the
Parties will discuss in good faith whether a time extension is feasible. If the Parties agree upon an
extension . they shall record such agreemen t as an amendment to the Project Form . If the Parties can not
agree upon an extension , Google shall return the Selected Content within the time frames set forth in the
Project Form.
2.7 Responsibility for damage to the Selected Content. While certain Selected Content is
within Google's possession, Google shall make commercially reasonable efforts to minimize damage to
the Selected Content, including handling the Selected Content in accordance with handling instructions
set forth in the Project Form , if any. If Google, due to ils negligence, damages certain Selected Content,
Google shall , at ils own cost, have the damaged Selected Content restored to the condition in which
Google received it. Restoration of all materials must be performed by or under the management of
U of M Conservation Services .
3.

COSTS

3.1 Costs borne by U of M. U of M shall bear the following costs U of M employees (other
than staff scanning operators and staff employed to pull and return materials to the shelves, including
reshelving) whose participation is contemplated by this Agreement (including all cost of U of M employees
required to provide Selected Content to Google as well as project management costs incurred by U of M),
network bandwidth and data storage requ ired by U of M to receive some or all of the U of M Digital Copy
or existing bandwidth availabl e for use by Google to transfer Digitized files from U of M facilities to
Google's data centers and U of M space that may be available to Google.
3.2 Costs borne by Google. Google shall bear the following costs : Google employees or
agents whose participation is contemp lated by this Agreement (including a/l cost of Google employees
required between receipt/collection of the Selected Content from U of M and retum of the Selected
Content to U of M), hardware and software required to Digitize the Selected Content, space required to
Digitize the Selected Content (to the extent not provided by U of M), transportation of Selected Content
from the U of M facility in which the Sel ected Content is normally kept (if requ ired), and resolving
copyright issues associated with Google's use of the Google Digital Copy.
3.3 Budgets. Notwithstanding the foregoing , U of M and Google may jointly develop a budget
for each Project Plan , pursuant to which the parties can allocate the cos t of researching and identifying
the Selected Content, conducting conservation assessments, performing conservation work, and

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performing any requ ired copyright research and clearances . Any such budget shall take precedence over
the general obligations set forth above in sections 3.1 and 3.2.
4.

OWNERSHIP AND USE OF DIGITAL COPIES AND SERVICES

4.1 Copyright Law. Both Google and U of M agree and intend to perform this Agreement
pursuant to copyright law. If at any time , either party becomes aware of copyright infringement under this
agreement, that party shall inform the other as quickly as reasonably possible.
4.2 Copyright Status. As Selected Content is provided by U of M to Google for Digitizing,
U of M shall to the best of its knowledge notify Google which portions of the Selected Content are in the
public domain and which portions may be subject to copyright. Notwithstanding the foregoing, Google
shall be responsible for ensuring that Google's digitization and its use of the Google Digital Copy is
authorized by the relevan t copyright holders or by law. If either party reasonably determines that a
portion of the Se lected Content that was previously thought to be in the public domain is actually subject
to copyright, that party shall promptly notify the other party in a writing that particularly identifies the
portion(s) and provides an explanation for why the portion(s) are bel ieved to be subject to copyright.
4.3 Searching Free to the Public: Google agrees that to the extent that it or its successors
make Digitized Available Content searchable via the Internet, it shall provide an interface for both
searching and a disp lay of search results that shall have no direct cost to end users. Violations of th is
subsection, 4.3 , not cured within thirty days of notification by U of M shall terminate U of M's obligations
under section 4.4 .
4.4 Ownership and use of U of M Digital Copy. Neither U of M nor Google shall have any
ownership or license rights to the Available Content that is Dig itized (i.e., to the materials underlying the
digitization process), except where UM already has such rights. As between Google and U of M and
subject to the provisions in this section 4, U of M shall own all rights, title, and interest to the U of M Digital
Copy.
4.4 .1
Use of U of M Dig ital Copy on U of M Website . U of M shall have th e right to use
the U of M Digital Copy, in whole or in part at U of M's sole discretion, as part of services offered on
U of M's website. U of M shall implement technological measures (e.g .. through use of the robots .txt
protocol) to restrict automated access to any portion of the U of M Digital Copy or the portions of the
U of M website on which any portion of the U of M Digital Copy is availa ble. U of M shall also make
reasonable efforts (including but not limited to restrictions placed in Terms of Use for the U of M website)
to prevent third parties from (a) downloading or othen.vise obtaining any portion of the U of M Digital Copy
for commercial purposes, (b) redistributing any portions of the U of M Digital Copy, or (c) automated and
systematic down loading from its website image fi les from the U of M Dig ital Copy. U of M shall res trict
access to the U of M Digital Copy to those persons having a need to access such materials and shall also
cooperate in good faith with Google to mutually develop methods and systems for ensuring that the
substantial portions of the U of M Digital Copy are not downloaded from the services offered on U of M's
website or othen.vise disseminated to the public at large .
4.4.2
Use of U of M Digital Copy in Cooperative Web Services . Subject to the
restrictions set forth in this section, U of M shall have the right to use the U of M Digital Copy, in whole or
in part at U of M's sole discretion , as part of services offered in cooperation with partner research libraries
such as the institutions in the Digital Library Federation . Before making any such distribution, U of M
shall en ter into a written agreement with the partner research library and shall provide a copy of such
agreement to Google , which agreement shall: (a) contain limitations on the partner research library's use
of the materials that correspond to and are at least as restrictive as the limitations placed on U of M's use
of the U of M Digital Copy in section 4.4 .1; and (b) shall expressly name Google as a third party
beneficiary of that agreement, including the ab ility for Googl e to enforce the res trictions against the
partner research li brary.
4.5 Ownership and use of Google Digital Copy. Neither U of M nor Google shall have any
ownership or license rights to the Available Content that is digitized (i .e., to the materials underlying the
digitization process), except where UM already owns such rights. As between Google and U of M and
subject to the provisions in this section 4, Google shall own all rights, title, and interest to the Google
Digital Copy.

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4.5.1 Google use of Google Digital Copy. Subject to the restrictions set forth in this
section, Google may use the Google Digital Copy, in whole or in part 2t Google's sole discretion, as part
of the Services. For portions of the Goog le Digital Copy that correspond to works mutual ly identified as
being in th e public domain or for which Google has obtained permission from the relevant copyright
owner(s), Google may among other things index the full text and serve and display full -sized digital
images correspond ing to those portion s. For all other portions of the Google Digital Copy, Goog le may
index the fuft te xt but may not serve or display the fu ll -sized digilal image unless Google has appropriate
legal authority to do so; Goog le instead may serve and display (1) an excerpt tha t Google reasonably
determines would constitute fair use under copyright law and (2) bibliographic (e.g., title, author, date, etc)
and other non-copyrighted information . If U of M discovers that digital images being served and
displayed full -size by Google are subject to copyright restrictions, U of M shall notify Google in writing and
Google shall cease serving and displaying such images full -size. Furthermore, to address situations
where Google believed it had the righ t to serve fuft-sized dig ital images but was incorrect in such belief.
Google shall implement processes (e .g., notice and takedown) that facilitate the ability of copyright
owners to request removal of such digital images from the index.
4.5.2 Security and Privacy Regarding Google's Use of the Google Digital Copy.
Google shall implement technological measures (e.g., through use of the robots.txt protocol) to restrict
automated access to any portion of the Google Digital Copy or the portions of the Google website on
which any portion of the Google Digital Copy is available . In addition, Google shall maintain on its
website a privacy policy that governs collection and use of infonnation that Google obtains from a user of
the Google Search Services .
4.5.3 Distribution of Google Digital Copy. To the extent portions of the Google Digital
Copy are either in the pu blic domain or where Google has otherwise obtained authorization , Google shall
have the righ t, in its sole discretion, to make copies of such portions of the Google Digital Copy and to
provide, license, or sell such copies to any party, subject to such copies being used consistent with the
copyright-related restrictions set forth in section 4 .5.1.
4.6 Ownership and Control of Services. As between the parties, the Services and all content
therein is, and at all times will remain, the exclusive property of Google or its partners; nothing in this
Agreement implies any transfer to U of M of any ownership interest in the Services. U of M acknowledges
and agrees that Google retains control of the Services, and that the design, layout, content, functions and
features of the Services are at Google's discretion . Notwithstanding anything to the contrary in th is
Agreement, Google is not required to make any or all of the Google Digital Copy available through the
Services.

4 .7 No other rights. Except as set forth above, nothing in this subsection shalt be interpreted as
a grant of right from either party to the other party.
S.

ACCESS , AUTHORIZATION , AND SUPPORT

5.1 Access. On a project-specific basis, Google shall have the right to access Selected Content
during U of M business/staff hours (8:00am to 5:00pm, Monday through Friday) without first be ing
required to notify U of M. On a project-specific basis, U of M may make reasonable efforts to provide
Google with access to Selected Content outside of U of M business hours provided th at Google notify
U of M at least three days in advance of its desire to access such materials.
5.2 Authorization. The U of M program manager responsible for the Selected Content involved
in any Project Plan shalt have authority to agree with Google on the time frames and procedures (e.g .,
collection, conservation, handling) associated w ith that Selected Content. If Google in good faith believes
that the time frames and procedures requested by the U of M program manager are unreasonab le,
Goog le shalt escalale the matter to the U of M administrative contact; in which case Google, the U of M
program manager, and the administrative contact shall meet to resolve the issue .

5.3 Support. U of M shall appoint one person to serve as the administrative contact for Google,
should administrative questions or issues arise during the course of this Agreement. This administrative
contact shall be available during business hours at a telephone number and e-mail address to be
provided by U of M. U of M shall also appoint one person to serve as the techn ical con tact for Google , for
ob taining or regulating the use of the U of M Digital Copy . This technical contact shall be available during

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regular U of M business hours (8 :30 to 4:30, Monday through Friday) at a telephone number and e-mail
address to be provided by U of M. Upon execution of this contract, both Google and U of M sha ll identify
these individuals in writing, and the resulting document shal l serve as an addendum to this contract.
6.

CONFIDENTIALITY

6.1 Confidential Information. By virtue of th is Agreement, each Party may have access to
information of the other Party which is considered confidential and proprietary, including the terms of this
Agreement , Project Plan or Project Form , product plans, customer lists, and proprietary technology or
methods (,"Confidential Information"), whether disclosed in tangible or intangible form. Information
disclosed in tangible form Will be considered Confidential Information if it is marked as "Confidential" or a
similar designation . Information disclosed in intang ible form will be considered Confidential Information if
the disclosing party clearly indicates that it is confidential at the time of disclosure.
6.2 Obligations. Each Party shall exercise at least the same degree of care to avoid the
publication or dissemination of the Confidential Information of the other Party as it affords to its own
confidentia l information of a similar nature which it desires not to be published or disseminated. The
receiving Party shall not use Confidential Information of the disclosing Party except in the furtherance of
this Agreement or the performance of its obligations hereunder. The obligation of the Parties not to
disclose Confidential Information survives expiration, termination or cancellation of this Agreement.
6.3 Exceptions. Neither Party is obligated to protect Confidential Information of the other Party
that: (i) is rightfully received by the receiving Party from another party without restriction, or (ii) is known to
or developed by the receiving Party independently without use of, or reference to, the Confidential
Information, or (iii) is or becomes generally known to the public by other than a breach of duty hereunder
by the receiving Party, (iv) has been or is hereafter furnished to others by the disclosing Party without
restriction on disclosure, or (v) required to be disclosed by any governmental authority. Google
understands that U of M, as a public institution, is subject to the Michigan Freedom of Information Act,
and any disclosure of Confidential Information requ ired by that statute will not constitute a breach of th is
agreement
7.

MARKETING

7.1 Press Releases or Announcements. Other than as has been mutually agreed upon by the
Parties, neither Party may make any press announcements about the relationship or this Agreement
without the prior written approval of the other Party, which will not be unreasonably withheld or delayed.
U of M and Google, as practicable, will coordinate regarding the timing of any press release(s) and will
mutually agree upon appropriate talking points.
7.2 License to Marks. Each party will submit all materials of any kind containing the other
party's Brand Features (other than its name in customer lists) to the other party for approval prior to
release to the public. Except as set forth in this section, nothing in this Agreement shall be deemed to
grant to one party any right, title or interest in or to the other party's Brand Features. All use by Google of
U of M's Brand Features (including any goodwill associated therewith) shall inure to the benefit of U of M
and all use by U of M of Google's Brand Features (including any goodwill associated thereWith) shall
inure to the benefit of Google. At no time during the Term shall one party chall enge or assist others to
challenge the Brand Features of the other party (except to the extent required to protect its own Brand
Features) or the registration thereof by the other party, nor shall either party attempt to register any Brand
Features or domain names that are confusingly similar to those of the other party
8.

TERM AND TERMINATION

8.1 Term This Agreement is effective as of the EHective Date and continues in full force and
effect until April 30, 2009, unless earlier terminated as provided herein at the end of the Pilot Project
Upon the expiration of the Initial Term, this Agreement shall automatically renew for additional one year
terms (each a "Renewal Term") unless either Party notifies the other Party to the contrary at least thirty
(30) days before the end of either the Pilot Project, the Initi al Term or a Renewal Term. The 'Term" of this
Agreem ent shall comprise the Initial Term and any Renewal Terms.
8.2 Effect of Expiration or Termination . Within th irty (30) days after expiration or termination of
this Agreement for any reason, each Party shall return to the other Party (or, at that Party's request,

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destroy) any Confidential Information of that Party that is in its possession. The following sections survive
expiration or termination of this Agreement: 1, 2.51, 2.5.2, 2.6, 2.7, 4.4 (so long as Google or a
successor continues to exist), 4.5, 4.7 , 4.8,6,8.2, and 9-12.
9.

WARRANTIES AND DISCLAIMER

9. 1 Mutual Warranties . Each Party represents and warrants to the other that (i) it has full right,
power and authority to enter into this Agreement and to perform all of its obligation hereunder; (ii) this
Agreement constitutes its val id and binding obligation, enforceable against it in accordance with its terms;
and (iii) its execution, delivery and performance of this Agreement will not resu lt in a breach of any
material agreement or understanding to which it is a Party or by which it or any of its material properties
may be bound .
9.2 Disclaimer. THE WARRANT IES EXPLICITLY SET FORTH ABOVE ARE THE ONLY
WARRANTIES PROVIDED HEREIN AND ARE IN LIEU OF ALL OTHER WARRANTIES BY THE
PARTIES, EXPRESS OR IMPLIED, INCLUD ING ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SUBJECT MATTER OF THIS
AGREEMENT.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GOOGLE
SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING NON-INFRINGEMENT OF THIRD PARTY
INTELLECTUAL PROPERTY.
10.

INDEMNIFICATION .

10.1
By Google. Google shall defend and indemn ify the U of M, its Regents, employees, and
agents against any third party claim based on an allegation that the U of M's (or its Regents', employees',
or agents') or Google's actions , pursuant to this Agreement , violate that third party's copyrights or other
legal righ ts. The foregoing indemnification includes U of M's receipt of the U of M Digital Copy, but
excludes any third party claim that relates to U of M's use or distribution of the U of M Digital Copy or that
arises from U of M's (or its Regents', employees' and agents') negligence under this Agreement. Google
shall select counsel reasonably appropriate for such defense and shall pay for all costs incurred by such
counsel. In addition, Google shall pay any damage awards or settlement costs that may be incurred .
U of M may participate in the defense with counsel of its own choice, at its own expense.
10.2
By U of M. U of M shall defend and indemnify Google, its employees and agents against
any third party claim based on an allegation that U of M's use or distribution of the U of M Digital Copy
violates third party copyrights or other legal rights. U of M shall also defend and indemn ify Goog le, its
employees and agents against any third party claim based on an allegation that any third party's use or
distribution of the U of M Digital Copy violates third party copyrfghts or other legal rights . U of M shall
select counsel reasonably appropriate for such defense and shall pay for all costs incurred by such
counsel. In addition, U of M shall pay any damage awards or settlement costs that may be incurred.
Google may participate in the defense with counsel of its own choice, at its own expense.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, EACH
10.3
PARTY EXPRESSLY DISCLAIMS ANY FURTHER OBLIGATION TO INDEMNIFY, DEFEND OR HOLD
HARMLESS THE OTHER PARTY FROM ANY THIRD PARTY CLAIM OR ACTION. THE FOREGOING
PROVISIONS OF THIS SECTION 10 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF
INDEMNIFYING PARTY, AND THE EXCLUSIVE REMEDY OF INDEMNIFIED PARTY, WITH RESPECT
TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS
UNDER THIS AGREEMENT.
11.

LIMITATION OF LIABILITY

EXCEPT FOR DAMAGES ARISING FROM BREACH OF SECTION 6 (CONFIDENTIALITY) OR
DAMAGES ARISING FROM BREACH OF SECTIONS 4.4 - 4 .6 (AND ASSOCIATED SUBSECTIONS),
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR ANY FORM
OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER
FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT, WHETHER
BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND
WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE. EXCEPT FOR DAMAGES ARISING FROM BREACH OF SECTION 6 (CONFIDENTIALITY)

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OR DAMAGES ARISING FROM BREACH OF SECTIONS 4.4 - 4.6 (AND ASSOCIATED
SUBSECTIONS), EACH PARTY'S LIAB ILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE
FEES EXPENDED BY THE OTHER PARTY AS OF THE DATE OF SUCH CLAIM.
12.

GENERAL PROVISIONS

12 .1
No Obligation . Notwithstanding the foregoing, Google shal l have no obligation to
Digitize any portion of the Ava ilable Content nor to use any portion of the Google Digital Copy as part of
the Services. U of M shall not be obligated to participate in any Project Plan to the extent U of M does not
have sufficient funds to perform its budgeted obligations under that Project Plan.
Furthermore,
notwithstanding anything in this Agreement to the contrary, in the event Google determines, at its sole
discretion, not to Digitize some or all Selected Content in connection with one or more specific Projects,
whether due to cost issues, conservation concerns or otherwise , Google shall have no obl igation to the U
of M with respect to digitizing or del ivering the U of M Digital Copy with respect to such Selected Content.
12.2
Assignment. Neither Party may assign this Agreement without the other Party's prior
written consent, which consent shall not be unreasonably withheld . Any attempt to assign this Agreement
other than as permitted above wil l be null and void . Subject to the foregoing, this Agreement is binding
upon and shall inure to the benefit of each of the Parties, and the successors and perm itted assigns of
each .
12.3
Notices . Any notice required or permitted by this Agreement will be deemed given if sent
by facsimile or by registered mail, postage prepaid, addressed to the other Party at the address set forth
at the top of this Agreement. Delivery will be deemed effective upon transmission by facsimile (with
receipt acknowledgement) or three (3) days after deposit with postal authorities. Unless otherwise
specified by Google, notices directed to Google shall be sent to Google Inc., Attn: General Counsel, 2400
Bayshore Pkwy, Mountain View, CA 94043 , or via facsimile to Google Inc., Attn : General Counsel, 650618-1499. Unless otherwise specified by U of M, notices directed to U of M shall be sent to University
Library, Attn: Associate University Librarian LIT, University of Michigan, Ann Arbor, MI48109-1205.
12.4
Independent Contractors. The Parties to this Agreement are independent Parties and
nothing herein shall be construed as creating an employment, agency, joint venture or partnership
relationship between the Parties. Neither Party shall have any right , power or authority to enter into any
agreement for or on behalf of, or incur any ob ligation or liability, or to otherwise bind, the other Party.
Severability. If any term or provision of this Agreement is held to be invalid, illegal, or
12.5
otherwise void against public policy, such term or provision shall be stricken and shall not affect the
validity or enforceability of the remaining terms and provisions of this Agreement.
12.6
Force Majeure. Performance by either party under this Agreement shall be excused
during the period such performance is prevented or delayed by government restrictions, war or warlike
activity (e.g" acts of terrorism), insurrection or civil disorder, labor disputes, or any other causes similarly
or dissimilar to the foregoing that are beyond the control of either party and are not foreseeable at the
time the Agreement (or relevant amendment) is executed.
12.7
General. The Agreement shall be governed by Federal law without giving effect to
applicable conflict of laws provisions. In the event of any dispute or litigation arising out of or relating to
this Agreement, each Party agrees that it shall attempt to resolve such dispute in good faith. If such
dispute cannot be reso lved within thirty days of being raised, the dispute shall be elevated to the highest
level at each Party. If the dispute still cannot be resolved within an additional thirty days, the aggrieved
party may file a lawsuit in the state or federal courts with jurisdiction to hear such suits in the State of
Michigan . This Agreement, including any Project Forms and attached Exhibits, constitutes the entire
understanding and agreement with respect to its subject matter, and supersedes any and all prior or
contemporaneous representations , understandings and agreements whether oral or written between the
Parties relating to the subject matter of this Agreement, all of which are merged in this Agreement. For
avoidance of doubt, as of the Effective Date, this Agreement supersedes and replaces any other
Cooperative Agreements between the parties to the extent they exist. No modification of or amendment
to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing
signed by the Party to be charged, and the waiver of any breach or default will not constitute a waiver of
any other right hereunder or any subsequent breach or default. All amendments or modifications of this

CONF IDENTIAL

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Agreement shall be binding upon the Parties despite any lack of consideration so long as such
amendment or modifications are in writing and executed by the Parties. If any provision of this
Agreement is found to be invalid or unenforceable pursuant to judicial decree or decision, the remainder
of this Agreement sha ll remain valid and enforceable according to its terms. In such event, the Parties
agree to negotiate in good faith, a legal and enforceable substitute provision which most nearly conforms
to the Parties' intention in entering into this Agreement. The section and paragraph headings used in this
Agreement are inserted for conven ience only and sha ll not affect the meaning or interpretation of this
Agreement. This Agreement may be executed by exchange of signature pages by facsimile and/or in any
number of counterparts, each of which shall be an original as against any Party whose signature appears
thereon and all of which together shall constitute one and the same instrument.

CONFIDENTIAL

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Accepted and Agreed:
Google Inc.

On behalf of the Regents of the University of
M

By: -- - - - - (Authorized signature)

(Authorized signature)

Name: David Drummond

Name: Timothy Siottow

Title: V,P ., Corporate Development

T itle: Executive Vice President and
Chief Financial Officer

CONFIDENTIAL

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EXHIBIT A

SAMPLE PROJECT FORM

Project Name :
Program Manager:
Estimated Start Date:
Estimated Completion Date :
Description of Works Involved:
OUI-of-circulation Time :
Location of Works:
Conservation Requirements :
Collection Instructions :
Transportation Instructions:
Special Handling Instructions :
Infrastructure Requirements (e.g., space, power, scanner size and quantity, environmental parameters,
etc .):
Hours of Operation :
Known Copyright Res trictions :
Budget Allocations (if any):

Other comments :

12

CONFIDENTIAL

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AMENDMENT TO COOPERATIVE AGREEMENT

This Amendment to Cooperative Agreement (the "Amendment") is entered into
by and between the Regents of the University of Michigan ("U of M") and Google Inc.
2009 (the "Amendment
("Go·ogle"). This Amendment is effective as of May
E:ffective Date"), except as set forth herein .

n,

Background
A.

U of M and Google entered into 3 Cooperative Agreement dated June 15,

2005 (the "Agreement"), pursuant to which Google is digitally scanning certain content
from the U of M library collection and making such digitally scanned content available to
U of M for certain uses. Both parties acknowledge and agree that, although the U of M
party to the Agreement was identified as "The Regents of the University of
Michigan/University Library, Ann Arbor Campus," the correct legal entity was "The
Regents of the University of Michigan," and the Agreement involves and applies to
activities related to all of the University of Michigan campuses.
B.
Google has entered into a Settlement Agreement (the "Settlement
Agreement") in the form as filed with the United States District Court for the Southern
District of New York on October 28, 2008 in connection with case number 05 CV 8136
between The Authors Guild Inc., et a!. as Plaintiffs and Google as Defendant.

c.
The terms of the Settlement Agreement affect the rights and obligations of
Google under the Agreement and this Amendment reflects such changes to Google's
rights and obligations , as well as other changes to the Agreement that the parties desire
to make at this time or that are required by the Library-Registry (Fully Participating)
Agreement.
D.
U of M and other libraries have entered or will enter into an agreement
(the "Library-Registry (Fully Participating) Agreement") with the Registry organized
pursuant to the Settlement Agreement.
E.
U of M and Google now desire in accordance with Section 12.7 of the
Agreement to: (i) amend the Agreement through this Amendment with respect to certain
terms, but in all other respects the Agreement shall continue in full force and effect; and
(ii) add additional terms to the Agreement as set forth below

F.
U of M and Google intend for this Amendment to allow the existing terms
of the Agreement, as modified herein, to continue to govern the treatment of digital
copies of works not subject to the Settlement Agreement (the "Non-Settlement Digital
Copy ," as more fully defined below) and to create additional terms to govern digital
copies of works subject to the Settlement Agreement (the "Settlement Digital Copy."
as more fully defined below).

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NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises set forth below, U of M and Google hereby agree as follows:
Terms
1.
Definitions. Capitalized terms defined in this Amendment, including without
limitation the Collective Terms attached hereto as Attachment A (the "Collective
Terms"), shall have the meanings set forth in this Amendment. Capitalized terms used
but not defined in this Amendment shall have the meanings set forth in the Agreement
or the Settlement Agreement, provided that any such term that is defined in both the
Agreement and the Settlement Agreement shall have the meaning set forth in the
Settlement Agreement with respect to the Settlement Digital Copy and shall have the
meaning set forth in the Agreement with respect to the Non-Settlement Digital Copy.

2. No Conflict with Settlement Agreement. In the event that compliance with
the terms of this Amendment or the Agreement would cause Google to breach the
Settlement Agreement or would cause U of M to breach its Library-Registry (Fully
Participating) Agreement, then such compliance with this Amendment or the Agreement
will be excused, but only to the extent that such compliance would result in such a
breach .
3.
Effective Date. The term "Effective Date" in the preamble of the Agreement
and throughout the remainder of the Agreement (but before giving effect to this
Amendment) shall be replaced with the term "Original Effective Date." The term
"Original Effective Date" shall mean June 15, 2005. The term "Effective Date" shall
have the meaning set forth in the Settlement Agreement.
4.
Available Content. Section 1.1 of the Agreement shall be deleted and
replaced with the fol/owing: "1.1 'Available Content' means the entire print library
collection held by or under the control of the Regents of the University of Michigan.
Available Content also includes, without limitation, w orks made available by U of M to
Google in Digitized form . Those Books and Inserts included within the Available Content
constitute the Books and Inserts targeted for Digitization for purposes of the Settlement
Agreement."
5.
Digitization . Section 1.3 of the Agreement shall be deleted and rep laced with
the following : "1.3 'Diaitize' means to convert a work from a hard copy (including
microform) format into an electronic representation , using any means and any
technology, whether now known or hereafter developed, including making necessary
technical adaptations to achieve such conversion (but not including adapting or altering
the content of such written work). 'Digitization,' 'Digitizing' and 'Dig itized' have
corresponding meanings ."
6.
Deletions and Corrections . Sections 1.4 (definition of "Distribution Price")
and 1.17 (definition of "Requested Portion") of the Agreement shall be deleted in their
entirety . In Section 1.9 (definition of "U of M Collection") of the Ag reement. the
referen ce to section 1.2 shall be corrected to be a refere nce to Section 1.1.

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7.
U of M Digital Copy. Section 1.10 of the Agreement shall be deleted and
replaced with the following: "1.10 'U of M Digital Copy' means the Settlement Digital
Copy and the Non-Settlement Digital Copy provided by Google to U of M. For the
avoidance of doubt, the definition of "U of M Digital Copy" does not include Digital
Copies provided to Google by U of M, unless such Digital Copies are Digitized by U of
M (or its contractors) at the request (which request shall be in writing or electronic
communication) of Google."
8.
Selected Content. Section 1.19 of the Ag reement shall be deleted and
replaced with the following: "1 .19 'Selected Content' means the Available Content."
9.
Digital Copy. A Section 1.23 shall be added to the Agreement and shalt read
as follows : "1 .23 'Digital Copy' means a set of electronic files, including (a) the image
files of the individual pages of the Digitized Selected Content along with text (currently
generated from optical character recognition technology "OCR"), (b) coordinate
information for the text (Le., the image coordinates), copyright notice, year, and place of
publication for the text (if available through Google's processes) , (c) information about
the ordering of pages along with page-level metadata such as page number and other
similar information, (d) a unique identifier for the work, and (e) the date the work was
Digitized by Google, regardless of the means or technology used to prepare such copy,
whether now known or hereafter developed, and any digital copy of such set of
electronic files . A Digital Copy of a work may be constructed by Google from one or
more physical works into a composite version of the work, which may include alternative
page images from different copies of the work that Google obtains from sources other
than U of M, provided that the Digital Copy of any such composite version of a work will
contain metadata indicating that the Digital Copy contains pages from different copies of
the work and the sources of the different copies."
1O. Non-Settlement Digital Copy. A Section 1.24 shall be added to the
Agreement and shall read as follows : "1.24 'Non-Settlement Digital Copy' means the
Digital Copies of the Selected Content Digitized by Google that are not governed , or
that cease to be governed , by the Settlement Agreement, including without limitation as
a result of such Selected Content rising into the public domain ."
11 Settlement Digital Copy; Amendment Effective Date. A Section 1.25 shall be
added to the Agreement and shall read as follows: "1 .25 'Settlement Digital Copy'
means the Library Digital Copy as that term is defined in the Settlement Agreement." A
Section 1.26 shall be added to the Agreement and shall read as follows: "1.26
'Amendment Effective Date' means May .ri.., 2009:
12. U of M Digital Copy. The fourth sentence of Section 2.5 of the Agreement
shall be deleted in its entirety
13. No Destruction of Settlement Digital CoPy. Section 2.5.2 of the Agreement
shall be amended by adding the following sentences at the end of such Section:

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5118i0 9

a.
"Further, when that Digitized content rises into the public domain (in
Google's determination), Google wi ll retransfer that Digitized Content to U of M provided
Google retains a Digital Copy in its possession at the time and has the technical
capability to transfer it to U of M."
b.
"Notwithstanding the forego ing , this Section 2.5.2 shall not be deemed
to require U of M to destroy any portion of the Settlement Digital Copy that it is not
otherwise required to destroy pursuant to other terms of this Agreement or U of M's
Library-Registry (Fully Participating) Agreement. n

14. Rights to U of M Digital Copy. Section 4.4 of the Agreement, "Ownership
and use of U of M Digital Copy," shall be amended by changing its head ing to "Rights
to U of M Digital Copy" and by replacing the text thereof with the following :
"Neither U of M nor Google shall hold any license or other rights to the Available
Content that is Digitized (i.e., to the materials underlying the Digitization process) ,
except where U of M otherwise holds such rights. As between Google and U of M, and
subject to the provisions in this Section 4, U of M shall hold all rights , title, and interest
to the U of M Digital Copy."
15. U of M Websites. Section 4.4.1 of the Agreement, "Use of U of M Digital
Copy on U of M Website, " shall be amended by adding the following sentences at the
end of such Section: "The parties acknowledge that U of M may host more than one U
of M website and agree that this Section 4.4 .1 applies to each such website, provided
that the domain for each such website is owned by U of M. This Section 4.4.1 shali not
apply to the Settlement Digital Copy solely to the extent it conflicts with Section 4.4 .3 or
U of M's Library-Registry (Fully Participating) Agreement. "
16. 900perative Web Services. Section 4.4.2, "Use of U of M Digital Copy in
Cooperative Web Services ," shall be replaced with the following :
"4.4.2 Use of U of M Digital Copy in Cooperative Web Services. Except as
set forth in Section 4.4.3 and the terms of U of M's Library-Registry (Fully Participating)
Agreement and this Section , and provided U of M has obtained all necessary
permissions , rights, and licenses from third parties, U of M shall have the right to use
the U of M Digital Copy, in whole or in part at U of M's sale discretion, as part of web
services offered in cooperation with partner academic libraries and/or partner public
research libraries (such as the New York Public Library), including , without limitation,
the institutions in the Association of Research Libraries, Digital Library Federation and
similar organizations. Such services may include, without limitation , indexes and finding
tools, as well as the reproduction and display of the U of M Digital Copy, to the extent
riot otherwise prohibited by this Agreement and U of M's Library-Registry (Fully
Participating) Agreement Before U of M makes any such use that invo lves the
distribution of one or more Digital Copies included within the U of M Dig ital Copy to any
such library , such library must enter into a written agreement with Google, the form of
which Goog le wi ll provide to U of M. Such agreement will (a) prohibit such rece iving
library from redistributing such Digital Copies from the U of M Digital Copy to any third
party, except that U of M may authorize such library to redistribute such Digital Copies

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5[18/09

as an agent and on behalf of U of M subject to the rights and restrictions set forth in this
Agreement, provided U of M would have the right under this Agreement to make such
redistribution directly, (b) limit the receiving library's use of such Digital Copies from the
U of M Digital Copy to the sale purpose of providing cooperative web services as set
forth herein , which limitations on use shall in all events be at least as restrictive as those
placed on U of M's use of the U of M Digital Copy in this Agreement and, if applicable,
the Library-Registry (Fully Participating) Agreement, and (c) require such receiving
library (i) to use reasonable efforts to prevent third parties from bulk downloading
substantial portions of such Digital Copies, and (ii) to implement technological measures
(e.g., through use of the robots .txt protocol) to restrict automated access to any part of
such entity's website where sUbstantial portions of such Digital Copies are available. U
of M will have the rig ht to approve those sections of. the form of such agreement that
grant any rights that materially differ from the rights granted to U of M with respect to the
use of such portions of the U of M Digital Copy in the Agreement."
17. Provi§j.on and Use of Settlement Digital Copy.
added to the Agreement and shall read as follows:

A Section 4.4.3 shall be

"4.4.3 Provision and Use of Settlement Digital Copy. Effective as of the
Effective Date, in addition to the terms of U cf M's Library-Registry (Fully Participating)
Agreement, the following shall apply to U of M's use of the Settlement Digital Copy:
(a)

Removal. U of M agrees that if a Rightsholder directs that its Book

be Removed pursuant to Section 3.5 of the Settlement Agreement and subject to
certain limitations set forth therein, Google shall have no obligation to provide or
make available to U of M a Digital Copy of such Book.
(b)
Provision of Settlement Digital Copy. The U of M Digital Copy
provided to U of M by Google may contain Books and Inserts contained in the
Available Content that Google did not actually Digitize at U of M but has Digitized
from another library. If either (i) Google has Digitized or received from U of Min
Digitized form at least five (5) million works from the Available Content. or (ii)(A)
Google has Digitized or received from U of M in Digitized form at least 3 million
works from the Available Content, (B) U of M has made and is continuing to
make all works in the Available Content accessible (or would have made such
works available for Digitization but did not do so due to their condition, size,
binding tightness , or other physical characteristics) to Google at a reasonable
rate (the "reasonableness" of the rate will take into account the number of works
remaining in the Available Content that Google desires to Digitize , Google's thencurrent ability to process such works and any operational issues or issues
beyond the reasonable control of U of M that may result in variations in the rate
or delays) unless Google is not then acting in good faith in the performance of
any material obligation under this Agreement (provided, however, that such
condition in clause (8) shall continue in the event Google begins to act in good
faith in the performance of such obligation again), and (C) U of M is not then in
an uncured material breach of this Agreement unless Google is not then acting in
good faith in the performance of any material obligation under this Agreement

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(provided , however, that such conditior in clause (C) shall continue in the event
Google begins to act in good faith in the performance of such obligation again);
then Googl'e will be required to return Digital Copies of Books and Inserts to U of
M that were Digitized, in whole or in part (which Digital Copies returned to U of M
will be composites if Digitized in part at different libraries) , at a different library if
those Books or Inserts are contained within the Available Content and U of M (1)
made the Books or Inserts available to Google for Digitization or (2) would have
made such Books or Inserts available for Digitization but did not do so due to
their condition, size, binding tightness, or other physical characteristics . U of M
shall provide Google with data regarding the Available Content sufficient for
Google to verify that a work Digitized at another library is included within the
Available Content Notwithstanding anything to the contrary set forth herein,
Google shall not be obligated to include in-copyright content Digitized from
libraries other than U of M that is not subject to the Settlement Agreement as part
of any Digital Copy provided by Google to U of M.
(c)
U of M as Hosting Fully Participating Library. In the event a
Requesting Fully Participating Library authorizes U of M to stofe and host such
Requesting Fulfy Participating Library's Library Digital Copy pursuant to Section
7.2(b)(x) of the Settlement Agreement, then U of M may treat such Requesting
Fully PartiCipating Library's Library Di!~ital Copy in accordance with the terms
applicable to the Settlement Digital Copy set forth herein with respect to U of M'S
exercise of its rights under Section 7.2(b)(x) of the Settlement Agreement,
notwithstanding any terms governing such Requesting Fully Participating
Library's Library Digital Copy set forth in such Requesting Fully Participating
Library's Digitization Agreement with Google that are more restrictive than or
conflict with the terms governing U of M's Settlement Digital Copy set forth
herein Google will apply the terms of Sections 4.4.5 (Redacted Information) and
4.4.6 (Technological Updates and Replacements) hereof to the Library Scans
contained in each Requesting Fully Participating Library's Library Digital Copy
hosted by U of M pursuant to Section 7.2(b)(x) of the Settlement Agreement.
notwithstanding any more restrictive term set forth in such Requesting Fully
Participating Library's Digitization Agreement with Google, U of M shall not be
liable t'O Google for a Requesting Fully Participating Library's breach of its
Library-Registry (Fully Participating) Agreement or its Digitization Agreement with
Google , except to the extent that an action or omission of U of M in breach of its
contractual or legal obligations was a cause of such breach ,"
18, Provision and Use of Non~SettJement Digital Copy_ A Section 4.4.4 shall be
added to the Agreement and shall read as follows: "4.4.4 Provision and Use of NonSettlement Digital Copy . This Section shall apply to that portion of the Non-Settlement
Digital Copy that is in the public domain .
(a) Provision of Public Domain Wo rks . The Non Settlement Digital
Copy provided to U of M by Google may contain Digital Copies of public domain
works that Google did not actually Digitize at U of M but has Digitized from

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another library. If: either (i) Google has Digitized or received from U of M in
Digitized form at least five (5) million works from the Available Content or (ii)(A)
Google has Digitized or received from U of M in Digitized form at least 3 million
works from the Available Content; (B) U of M has made and is continuing to
make all works in the Available Content accessible (or would have made such
works available for Digitization but did not do so due to their condition. size.
binding tightness. or other physical characteristics) to Google at a reasonable
rate (the "reasonableness" of the rate will take into account the number of works
remaining in the Available Content that Google desires to Digitize, Google's thencurrent ability to process such works and any operational issues or issues
beyond the reasonable control of U of M that may result in variations in the rate
or delays) unless Google is not then acting in good faith in the performance of
any material obligation under this Agreement (provided , however, that such
condition in clause (B) shall continue in the event Google begins to act in good
faith in the performance of such obligation again); and (C) U of M is not then in
an uncured material breach of this Agreement unless Google is not then acting in
good faith in the performance of any material obligation under this Agreement
(provided, however, that such condition in clause (C) shall continue in the event
Google begins to act in good faith in the performance of such obligation again) ;
then Google will be required to return Digital Copies of works that Google has
determined to be in the public domain to U of M that were Digit[zed, in whole or in
part (which Digital Copies returned to U of M will be composites if Digitized in
part at different libraries), at a different library if those public domain works are
contained within the Available Content and U of M either (1) made the public
domain works available to Google for Digitization or (2) would have made such
public domain works available for Digitization but did not do so due to their
condition , size. binding tightness, or other physical characteristics. U of M shall
provide Google with data regarding the Available Content sufficient for Google to
verify that a work Digitized at another library is included within the Available
Content.
(b) Non-Profit Uses. Notwithstanding the restrictions set forth in Sections
4.4 .1 and 4.4.2 of the Agreement. U of M may provide all or any portion of the
Non-Settlement Digital Copy that is, at the time of such provision. a Digital Copy
of a public domain work to (i) academic institutions or research or public libraries,
or (ii) when requested by U of M and agreed upon in writing by Google, other notfor-profit or government entities that are not providing search or hosting services
substantially similar to those provided by Google, including but not limited to
those services substantially similar to GBS (provided, however. that Google
acknowledges and agrees that print-an-demand services are not substantially
similar to any such services and U of M may provide such portions of the NonSettlement Digital Copy to an entity set forth in th is clause (ii) solely for such
entity to provide print-an-demand services for U of M without Google's consent).
such agreement not to be unre'asonably withheld or delayed (each entity in
clauses (i) and (ii) being referred to as an "Additional Institution"), in each case
for research, scholarly. or academic purposes, all of which must be non-

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commercial (unless otherwise agreed upon in writing by Google). Any Additional
Institution must enter into a written agreement with Google prior to U of M
providing any portion of the Non-Settlement Digital Copy to such Additional
Institution, the form of which Google will provide to U of M. Such agreement will
prohibit such Additional Institution from redistributing such portions of the NonSettlement Digital Copy to other entities (beyond providing or making content
available to scholars and other users for educational or research purposes),
prohibit such Additional Institution from using such portions of the NonSettlement Digital Copy to provide search or hosting services substantially similar
to those provided by Google, including but not limited to those services
substantially similar to GBS, and require such Additional Institution (A) to use
reasonable efforts to prevent third parties from bulk downloading substantial
portions of such Digital Copies of such works, and (B) to implement technological
measures (e.g. , through use of the robots.txt protocol) to restrict automated
access to any part of such entity's website where substantial portions of such
Digital Copies are available. U of M will have the right to approve those sections
of the form of such agreement that grant any rights that materially differ from the
rights granted to U of M with respect to the use of such portions of the NonSettlement Digital Copy in the Agreement.
(c) Lifting of Restrictions . Beginning on the date twenty (20) years
following the Amendment Effective Date, notwithstanding the restrictiohs set forth
in Sections 4.4.1 and 4.4.2 of the Agreement, U of M may provide all or any
portion of the Non-Settlement Digital Copy that is, at the time of such provision, a
Digital Copy of a public domain work to any entity so long as such entity is not
providing search or hosting services substantially similar to those provided by
Google. including but not limited to those services substantially similar to GBS (it
being acknowledged by Google that print-on-demand services are not
substantially similar to any such services) (each such entity being referred to as
an "Additional Entity").
Any Additional Entity must enter into a written
agreement with Google prior to U of M providing any portion of the NonSettlement Digital Copy to such Additional Entity, the form of which Google will
provide to U of M. Such agreement will prohibit such Additional Entity from
redistributing such portions of the Non-Settlement Digital Copy to other entitles
(beyond providing or making content available to scholars and other users for
non-commercial educational or research purposes) , prohibit such Additional
Entity from using such portions of the Non-Settlement Digital Copy to provide
search or hosting services substantially similar to those provided by Google,
including ·but not limited to those services substantially similar to GBS, and
require such Additional Entity (A) to use reasonable efforts to prevent third
parties from bulk downloading substantial portions of such Digital Copies of such
works, and (B) to implement technological measures (e.g., through use of the
robots.txt protocol) to restrict automated access to any part of such entity's
website where substantial portions of such Digital Copies are available. U of M
will have the right to approve those sections of the form of such agreement that
grant any rights that materially differ from the rights granted to U of M with

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respect to the use of such portions of the Non-Settlement Digital Copy in the
Agreement
(d) Failure to Provide Access. Beginning on the Amendment Effective
Date, if Google fails to offer a free service to end users with respect to any work
in the Non-Settlement Digital Copy that Google has determined to be in the
public domain that enables end users to search , view and print the full text of that
public domain work (unless the Digital Copy of such work is excluded by Google
for quality, technical, or legal reasons) for (i) any period of six (6) contiguous
months or (ii) any two (2) periods of ninety (90) contiguous days, which periods
occur in any period of twenty-four (24) contiguous months, then all restrictions
and requirements set forth in the Agreement (including without limitation Sections
4.4.1, 4.4.2, and this 4.4.4) regarding use or distribution of the Digital Copy of
that public domain work for which Google failed to offer such services by U of M
or by any recipient entity will terminate, provided U of M has provided written
notice to Google of such failure and Google has not remedied such failure within
fhirty (30) days following Google's receipt of such notice.
(e) No Restrictions. All restrictions and requirements set forth in the
Agreement regarding use or distribution (whether by U of M or by any recipient
entity) (including without limitation those set forth in Sections 4.4.1, 4.4.2 and this
4.4.4) of the works contained in the Non-Settlement Digital Copy that from time to
time are in the public domain shall terminate on January 1, 2050; provided,
however, that Google and U of M agree to evaluate business conditions in 2024
with respect to a possible earlier termination of such restrictions and
requirements .

(f) Purpose. For clarity, U of M and Google acknowledge that none of the
restrictions or requirements set forth in paragraphs (b) and (c) above was created
for the purpose of hindering U of M or any recipient entity from providing public
user access to the public domain works contained in the Non-Settlement Digital
Copy. Rather, the purpose of the continuing restrictions and requirements above
is to allow Google to protect the benefit of Google's investment in light of the
costs and resources related to Digitizing the Available Content."
19. Redacted Information. A Section 4.4.5 shall be added to the Agreement and
shall read as follows: "4.4.5 Redacted Information. To the extent Google redacts any
information (including without limitation any illustrations, photographs , or other images)
from any Digital Copy provided to U of M, Google shall provide U of M information
identifying each location within such Digital Copy containing redacted information, at the
same time as Google makes the Digital Copy of the work (or improvements or updates
thereto) available to U of M. "
20. Technological Updates and Replacements. A Section 4.4.6 shall be added
to the Agreement and shall read as follows: "4.4.6 Technological Updates and
Replacements . This paragraph shall be effective upon the Amendment Effective Date
with respect to works in the public domain as of and after such date; this paragraph

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shall be effective upon the Effective Date with respect to all other works in the U of M
Digital Copy . Within a reasonable period of time after Google Improves a Digital Copy
of any such work, Google will provide or make available to U of M a copy of the
Improved Digital Copy. In addition, Google will provide or make available to U of M a
copy of the Improved Digital Copy for each slIch work each time a Digital Copy of that
work is Improved by (i) any Fully Participating Library or Cooperating Library to the
extent Google is so permitted under a contract with such Fully Participating Library or
Cooperating Library and provided that such Fully Participating Library or Cooperating
Library makes the Improved Digital Copy available to Google, (ii) any third party that
Improves the quality of a Digital Copy of such work to be used in the Accommodated
Services under the terms of a Library-Registry (Fully Participating) Agreement, LibraryRegistry (Coope rating) Agreement , and/or the Settlement Agreement, to the extent
Google is so permitted under a contract with such third party and provided that such
third party makes the Improved Digital Copy available to Google, or (iii) any third party
to the extent Google is so permitted under a contract with such third party and provided
that such third party makes the Improved Digital Copy available to Google . If U of M
elects to download from Google a copy of the Improved Digital Copy of any such work ,
U of M may download only the most current version of such file made available to it by
Google. Google will make the Improved Digital Copy available to U of M within a
reasonable period of time after it is created by another party and provided to Google as
contemplated by this Section . For purposes of this Section , the term "Improve" shall
mean with respect to a Digital Copy, to make changes to a Digital Copy that materially
improve the viewability of text or the fidelity of the work and shall not include changes
made by Google to improve indexing, add content, or for other purposes (the resulting
Digital Copy shall be an "Improved Digital Copy" and any such improvement shall be an
"Improvement"). For example only, "Improve" shall include , without limitation : making
improvements to a Digital Copy that make the text of a work easier to view by users with
print disabilities and improvements to the Digital Copy from increased OCR accuracy.
Notwithstand ing anything to the contrary set forth herein, with respect to works
contained in the Non-Settlement Digital Copy that Google has not determined to be in
the public domain, Google shall be required to provide or make avaiiable Improved
Digital Copies of such works (i) only if the improvement materially improves the usability
or quality of Digital Copies fo r preservation (it being acknowledged that U of M has an
interest in maintaining high quality Digital Copies for preservation) or (ii) otherwise upon
request by U of M, and Google will not unreasonably withhold consent to such request
provided that Google may withhold consent for legal or reasonable other reasons . In
connection with the furnishing of such Improved Digital Copies, Google agrees from
ti me to time to (x) use delivery methods to be mutually agreed upon between Google
and U of M that are reasonably appropriate to timely delivery of the volume of content
being del ivered ; (y) employ mutually agreed upon technologies that provide reasonably
appropriate downloading and throughput speeds to U of M; and (z) make available
servers (or use some other mutually agreed upon mechanism for delivery of data) that
have reasonably appropriate capacity and rate of connectivity. Google will also provide
U of ~,,' access to download a copy of the fi le for any Digitized work previously provided
to U of M that has become lost, damaged, or destroyed with in thirty (30) days of any
request by U of M.'·

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21. Technical Cooperation . A Section 4.4.6.1 shall be added to the Ag reement
and shall read as follows : "4.4.6 .1 Technical Cooperation . Google will reasonably
cooperate with U of M to establish mutually agreed communications and dispute
resolution procedures with the goal that issues related to technical performance
(including without limitation download issues) be addressed expeditiously."
22 . Misclassifications. A Section 4.4.7 shall be added to the Agreement and
shall read as follows : "4.4.7 Misclassifications. Goog'e shall reasonably cooperate
with U of M at U of M's request to develop a process by which U of M may investigate
and report to Google what U of M believes to be misclassifications of works as not being
in the public domain, as well as a process by which Google will consider such reported
misclassifications. "
23. Institutional Subscription Terms and Subsidy. A Section 4.4.8 shall be added
to the Agreement and shall read as follows:
"4.4.8 Institutional Subscription Terms and Subsidy.
(a) Discount. For a period of tv.'enty-five (25) years from the date the full
Institutional Subscription (whether such product is offered alone or in
combination with other Google products) is first offered to Higher Education
Institutions, Google shall provide a version of the Institutional Subscription
product that is limited to all of the Books and Inserts contained in the Institutional
Subscription Database to U of M without charge, provided: (i) U of M has made
and is continuing to make all works in the Available Content accessible (or would
have made such works availab le for Digitization but did not do so due to their
condition, size, binding tightness, or other physical characteristics) to Google at a
reasonable rate (the "reasonableness" of the rate will take into account the
number of works remaining in the Available Content that Google desires to
Dig itize, Google's then-current ability to process such works and any operational
issues or issues beyond the reasonable control of U of M that may result in
variations in the rate or delays) unless Google is not then acting in good faith in
the performance of any material obligation under this Agreement (provided,
however, that such condition in clause (i) shall continue in the event Google
begins to act in good faith in the performance of such obligation again); (ii) U of
M is not then in an uncured material breach of this Agreement unless Google is
not then acting in good faith in the performance of any material obligation under
this Agreement (provided , however, that such condition in clause (ii) shall
continue in the event Google begins to act in good faith in the performance of
such obligation again); and (iii) U of M's FTEs are less than 60,000 . Following
such twenty-five (25)-year period, or earlier if any condition in (i), (ii), or (iii) is not
met, Google shall provide to U of M a yearly subsidy credited against the annual
subscription price of a version of the Institutional Subscription product that is
limited to all of the Books and Inserts contained in the Institutional Subscription
Database (or, if such Institutional Subscription product is offered in combination
with other Google products, the portion of the total annual subscription price
attributable to the Institutional Subscription product that is limited to all of the

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Books and Inserts contained in the Institutional Subscription Database) up to the
full annual subscription price of such version of the Institutional Subscription
equal to the price of one FTE for every fifty (50) Library Works that (A) were
Digitized by Google from the Available Content or provided by U of M to Google
in Digitized form under this Agreement and (B) are included in the Institutional
Subscription Database. In the event Google prices the annual subscription to
such version of the Institutional Subscription other than on an FTE-basis, Google
shall provide an equivalent subsidy to U of M credited against such annual
subscription price.
The percentage discount computed pursuant to this
paragraph (a) is referred to herein as the "Applicable Discount;" for clarification,
the Applicable Discount would be 100% during any period that the first sentence
of this paragraph (a) applies and results in no charge to U of M. The subsidy for
any Institutional Subscription term shall be calculated once per year on the date
of commencement of the Institutional Subscription term and on each yearly
anniversary thereof. If Google is offering a version of the full Institutional
Subscription product that does not contain advertising to Higher Education
Institutions, it shall make such version available to U of M pursuant to this
paragraph .
(b) Non-Settlement Works.
(i)
Discount. If Google offers a subscription product or service
in the United States that allows Higher Education Institutions access to and
viewing of the full text of individual in-copyright works not subject to the
Settlement Agreement for such institutions' users in the United States (whether
such product is offered alone or in combination with the Institutional Subscription)
(the "Non-Settlement Subscription))), and provided that either (a) Google has
Digitized or received from U of M in Digitized form at least five (5) million works
from the Available Content, or (b)(1) Google has Digitized or received from U of
M in Digitized form at least 3 million works from the Available Content, (2) U of M
has made and is continuing to make all works in the Available Content accessible
(or would have made such works available for Digitization but did not do so due
to their condition, size, binding tightness, or other physical characteristics) to
Google at a reasonable rate (the "reasonableness" of the rate will take into
account the number of works remaining in the Available Content that Google
desires to Digitize, Google's then-current ability to process such works and any
operational issues or issues beyond t e reasonable control of U of M that may
result in variations in the rate or delays) unless Google is not then acting in good
faith in the performance of any material obligation under this Agreement
(provided, however, that such conditlcn in clause (2) shall continue in the event
Google begins to act in good faith in the performance of such obligation again),
and (3) U of M is not then in an uncured material breach of this Agreement
unless Google is not then acting in good faith in the performance of any material
obligation under this Agreement (pr:)Vided, however, that such condition in
clause (3) shall continue in the event Google begins to act in good faith in the
performance of such obligation again); then Google shall offer to U of M the right

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to subscribe to , at U of M's option, (1) such Non-Settlement Subscription at an
annual subscription price equal to thE~ annual subscription price of such NonSettlement Subscription (or, if the Non-Settlement Subscription is offered in
combination with the Institutional Subscription, the portion of the total annual
subscription price attributable to the Ncn-Settlement Subscription) less:
the Applicable Discount computed under clause (a) above for the
comparable period, times the annual subscription price of such NonSettlement Subscription (or, if the Non-Settlement Subscription is offered
in combination with the Institutional Subscription, the portion of the total
annual subscription price attributable to the Non-Settlement Subscription),
and times a percentage to be mutually agreed by Google and U of M that
will be based upon the percentage value provided by the Non-Settlement
Works relative to the entire content in the Non-Settlement Subscription
and which percentage may not be greater than the percentage that the
number of works in the Non-Settlement Subscription that are NonSettlement Works represents of the total number of wprks in the NonSettlement Subscription. (For purposes of the Section, a "Non-Settlement
Work" shall mean an in-copyright work not subject to the Settlement
Agreement that (i ) is contained in the Available Content and (i i) either (A)
is published on or before January 5, 2009 and was Digitized from the
collection of any Participating Library (and such Dig ita l Copy is used to
provide access to such work within the Non-Settlement Subscription) or
(B) is published after January 5, 2009 and was Digitized from the
Available Content (and such Digital Copy is used to provide access to
such work with in the Non-Settlement Subscription» ;
or (2) access through such Non-Settlement Subscription solely to such portion of
the works in such Non-Settlement Subscription that are works in the Available
Content at an annual subscription price equal to the annual subscription price of
such Non-Settlement Subscription (or, if the Non-Settlement Subscription is
offered in combination with the Institutional Subscription, the portion of the total
annual subscription price attributable to the Non-Settlement Subscription), times
a percentage to be mutually agreed by Google and U of M that will be based
upon the percentage value provided by the Non-Settlement Works relative to the
entire content in the Non-Settlement Subscription and which percentage may not
be greater tha n the percentage that the number of works in the Non-Settlement
Subscription that are Non-Settlement Works represents of the total number of
wo rks in the Non-Settlement Subscription , and times : 100% minus the Applicable
Discount computed under d ause (a) a~ove for the comparable period . If Google
is offering a version of the full Non-Settlement Subscription that does not contain
advertising to Higher Education Institutions, it shall make such version available
to U of M pursuant to this paragraph.
(ii)
Institutional Purchase . If Google offers a product or service
that allows Higher Education Institutions to purchase for a fee Online access to

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and viewing of the full text of individJal in-copyright works not subject to the
Settlement Agreement for such institutions' users in the United States
("Institutional Purchase") , for as long as Google is using a Digital Copy of any
such work Digitized by Google from the Available Content or provided by U of M
to Google in Digitized form to provide such Online access to such work within
such Institutional Purchase and such work is not contained in the Non-Settlement
Subscription, Google will provide U of M a yearly subsidy equal to the price of
access to that work in the Institutional Purchase.
(iii)
Foreign Uses . If Google, (A) to the extent authorized by the
holder of relevant rights in a particular in-copyright work, includes such work in
the Non-Settlement Subscription or uses such work in any other manner in wh ich
Protected content is displayed that generates any revenue to Google (other than
any use in which such Protected content is provided to users free of charge) , in
either case in one or more countries other than the United States, and such
holder has rights to authorize such uses both within the United States and in
such other countries, and (B) such work set forth in (A) is a Non-Settlement
Work, then Google will permit U of M. if a subscriber to the Non-Settlement
Subscription (or the portion thereof comprising works in the Available Content) as
provided in paragraph (i) and/or Institutional Purchase as provided in paragraph
(ii) , above, to have access to such work through the Non-Settlement Subscription
and/or Institutional Purchase (as the case may be) for its users in such other
countries (in addition to access for its United States users as contemplated by
paragraphs (i) and (ii), above).
(c) Limited Subscription in Lieu of Discount. If at any time following the
date Google or its licensee first makes the Institutional Subscription generally
available to Higher Education Institutions, U of M chooses to forego the discount
for the Institutional Subscription set forth in Paragraph (a) of this Section, then,
for as long as Google or its licensee makes the Institutional Subscription
generally available to Higher Education Institutions, Google will offer to U of M a
limited subscription service allowing access to only those Books and Inserts
contained in the Institutional Subscription Database for which Google or its
licensee is using any portion of a Library Scan Digitized by Google from the
Selected Content (or provided by U of M to Google) to make such Book or Insert
available in the Institutional Subscription (the "Limited Subscription"). Google
will offer the Limited Subscription to U of M without charge under terms materially
similar to those under which it offers the Institutional Subscription to Higher
Education Institutions.
(d) Rightsholder Authorization. If, pursuant to authorization from a
Rightsholder, Google Of its licensee offers to users access to any portion of a
Library Scan (other than where access is provided to users free of charge) of
which U of M is the source prior to the Effective Date and the Book underlying
such Library Scan is not Commercially Available, Google will require the
applicable Rightsholder to authorize Google to provide U of M with access to

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such Library Scan without charge until the date Google makes the Institutional
Subscription for Higher Education Institutions, or a beta product thereof,
containing the Book on which such Library Scan is based available to U of M.
Google shall provide U of M such access to such Library Scan pursuant to this
paragraph and shall allow at least the uses and shall be subject to the restrictions
set forth in Sections 4.1 (d) through (f) of the Settlement Agreement.
(e) Beta Product Within six (6) months following the date Google or its
licensee makes available a Consumer Purchase model or any other revenue
model pursuant to the Settlement Agreement that allows access to any portion of
any Library Scan of which U of M is the source (other than any model that allows
access free of charge to the Book upon which such Library Scan is based),
Google shall offer to U of M an Institutional Subscription beta product as
authorized pursuant to Section 4.1 (g) of the Settlement Agreement.
(f) No Use If No Extension. In the event that:

(1) Google does not make the Institutional Subscription offered to
Higher Education Institutions generally available and in compliance with
Section 7.2(e)(i)(2) of the Settlement Agreement within two (2) years
following the date Google first made the Institutional Subscription beta
prod uct set forth in Section 4.1 (g) of the Settlement Agreement available
to any Fully Participating Library or Cooperating Library; and
(2) (i) Google requests that the Registry extend the time of
Google's authorization to support an Institutional Subscription beta
product for U of M pursuant to Section 4.1 (g) of the Settlement
Agreement, and the Registry does not grant such extension request; or (ii)
Google makes no such extension request;
then Google shall not use (or authorize any third party to use) any portion
of a Library Scan of which U of M is a source as part of a Consumer
Purchase or any other revenue model pursuant to the Settlement
Agreement (other than any model that allows access free of charge to the
Book upon which such Library Scan is based) if such Book is not
Commercially Available (A) from the date two years following the date
Goog le first made the institutional Subscription beta product available to
any Fully Participating Library or Cooperating Library, (B) until the earlier
of (x) the date Google first makes the Institutional Subscription offered to
Higher Education Institutions generally available and (y) the date the
Registry grants any extension request from Google set forth in paragraph
(2) and Google resumes providing the Institutional Subscription beta
product, provided that Google will not thereafter cease to provide the
Institutional Subscription beta product to U of M until such time as Google
first makes the Institutional Subscription offered to Higher Education
Institutions generally available."

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24. Consent to Distribution. A Section 4.4.9 shall be added to the Agreement
and shall read as follows:
"4.4.9 Consent to Distribution.
(a) Settlement Works. If (i) Google enters into an agreement with a
Rightsholder (or if at the request of U of M, a Rightsholder offers to enter into an
agreement with Google and Google declines) pursuant to which such
Rightsholder, without charge to Google, grants (or at the request of U of M, offers
to grant) Google the right to copy and distribute Digital Copies of a Book of such
Rightsholder without charge to users (and the right to sublicense such rights)
(provided such Rightsholder holds rights in the Book sufficient to grant Google all
such rights), and (ii) a Digital Copy of such Book is contained in the U of M Digital
Copy, then for as long as Google has (or for as long as such Rightsholder offered
to grant) such rights to copy and distribute set forth in clause (i) and subject to
the terms of the Library-Registry (Fully Participating) Agreement, applicable law
and authorization from the Rightsholder, U of M may distribute the Digital Copy of
such Book contained in the U of M Digital Copy in accordance with all the terms
and conditions set forth in Section 4.4.4 of this Agreement that are applicable to
U of M's ability to distribute public domain works until such Book rises into the
public domain.
(b) Non-Settlement Works. If (i) Google enters into an agreement with the
rightsholder of an in-copyright work not subject to the Settlement Agreement (or if
at the request of U of M, the rightsholder offers to enter into an agreement with
Google and Google declines) pursuant to which such rightsholder, without
charge to Google, grants (or at the request of U of M, offers to grant) Google the
right to copy and distribute Digital Copies of such work without charge to users
(and the right to sublicense such rights) (provided such rightsholder holds rights
in the work sufficient to grant Google aI/ such rights), and (ii) a Digital Copy of
such work is contained in the U of M D gita/ Copy, then for as long as Google has
(or for as long as such rightsholder offered to grant) such rights to copy and
distribute set forth in clause (i) and subject to applicable law and authorization
frofT) the rightsholder, U of M may distribute the Digital Copy of such work
contained in the U of M Digital Copy in accordance with a/l the terms and
conditions set forth in Section 4.4.4 of this Agreement that are applicable to U of
M's ability to distribute public domain works until such work rises into the publfc
domain."
25. Personal Uses . A Section 4.4.10 shall be added to the Agreement and shall
read as follows : "4.4 .10 Personal Uses. If (a) Google enters into an agreement with a
rightsholder of an in-copyright work not subject to the Settlement Agreement regarding
the display of Protected content from such work and (b) pursuant to such agreement
Google makes any use in a Non-Settlement Subscription service or a service similar to
the Consumer Purchase service (other than any use whereby access is provided to
users free of charge) of a Digital Copy of such work Digitized by Google from the
Selected Content or provided to Google by U of M in Digitized form under this

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Agreement, then the terms of service, authorization or license for such service(s) shall
not prohibit any personal, non-commercial uses of such work that would otherwise be
permitted under the Copyright Act (or applicable foreign copyright law) without the need
for express authorization from the rightsholder and would not be in violation of other
applicable laws."
26. Rights to Google Digital Copy. Section 4.5 of the Agreement, "Ownership
and use of Google Digital Copy," shall be amended by changing its heading to
"Rights to Google Digital Copy" and by replacing the text thereof with the following :
"Neither U of M nor Google shall hold any license or other rights to the Available
Content that is Digitized (i.e., to the materials underlying the Digitization process),
except where U of M otherwise holds such rights. As between Google and U of M, and
subject to the provisions in this Section 4, Google shall hold all rights, title, and interest
to the Google Digital Copy."
27. Google Use of Google Digital Copy. Section 4.5.1 of the Agreement,
"Google Use of Google Digital Copy," shall be amended by replacing the word
"owner" with "holder" in both places where such word appears in such Section.
28. Accommodated Service. A Section 4.5.4 shall be added to the Agreement
and shall read as follows: "4.5.4 Accommodated Service. Google hereby agrees to
treat each Digital Copy (that was Digitized by Google from the Available Content or
provided to Google by U of M) of a work that Google has determined to be in the public
domain in the same manner that it is required to treat Digital Copies of Books and
Inserts by Section 7.2(g) of the Settlement Agreement."
29. Certain Waivers. A Section 4.8 shall be added to the Agreement and shall
read as follows : "4.8 Certain Waivers. Google shall not require as a condition to its
execution of any Digitization Agreement or any amendment thereto with any Fully
Participating Library or Cooperating Library or as a condition to the receipt of particular
benefits thereunder, that: (i) such Fully Participating Library or Cooperating Library
waive as contemplated by Sections 3.5(b)(v) and 7.2(e) of the Settlement Agreement,
the Coupling Requirement or the Required Library Services Requirement as to any
Library Scan as to which such Fully Participating Library or Cooperating Library is a
source; or (ii) such Fully Participating Library or Cooperating Library agree to restrict
use or distribution of its Library Scans that otherwise would be permitted in accordance
with the terms of the Settlement Agreement (such as but not limited to use by a ThirdParty Required Library Services Provider as contemplated by Section 7.2(e) of the
Settlement Agreement). "
30. Effect of Expiration or Termination. Section 8.2 of the Agreement, "Effect of
Expiration or Termination," shall be ame nded and replaced ill its entirety with the
following: "Within thirty (30) days after expiration or termination of this Agreement for
any reason, each Party shall return to the other Party (or, at that Party's request,
destroy) any Confidential Information of that Party that is in its possession. The
following sections shall survive expiration or termination of this Agreement: Sections 1
(including all subsections) , 2.5 (including all subsections), 2.6, 2.7, 4.1, 4.2, 4.3, 4.4

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(including all subsections), 4.5 (including all subsections), 4.6, 4.8 , 6, 8.2, and 9 through
12 (in each case including all subsections) ; and Paragraphs 1, 2, 3, and 33 of the
Amendment. "
31. Indemnification tty Google. Section 10.1 of the Agreement, "By Google,"
shall be deleted and rep laced with the following :
"10.1 By Google.
(a) General Indemnification. Google shall defend , indemnify, and hold
harmless U of M, its affiliates, its and their Regents, trustees , officers, faculty,
employees, students , and agents (each , a "U of M Indemnitee") (provided, that
Google shall not hold harmless a U of M Indemnitee for claims for which Google
is not obligated to indemnify such U of M Indemnitee) against any third party
claim (including without limitation any claim by a governmental entity) brought
against any of them or against Google (or any of its directors, officers ,
employees, or agents) to the extent such claim is based on : (1) except as set
forth herein, an allegation that any action of any U of M Indemnitee or any action
of Google (or any of its officers, directors, employees, or agents) pursuant to this
Agreement (including without limitation U of M's provision of a work to Google for
Digitization or U of M's receipt of the U of M Digital Copy or any portion thereof) ,
violates that third party's copyrights or other legal rig hts; (2) except as set forth
herein, any action taken by Google, any U of M Indemnitee, or any third party in
connection with the act of negotiation and execution of (but excluding failure to
comply with the terms of) the Settlement Agreement, the Library-Registry (Fully
Participating) Agreement, any Hostin9 Addenda to any Library-Registry (Fully
Participating) Agreements, any Host Site-Registry Agreement; (3) an allegation
that the settlement as embodied in the Settlement Agreement and the
agreements entered into as specifically contemplated by the Settlement
Agreement violates any law; or (4) except as set forth herein, any other action
taken by Google , any U of M Indemnitee, or any third party in support of the
settlement embodied in the Settlement Agreement and the agreements entered
into as specifically contemplated by the Settlement Agreeme nt.
For the
avoidance of doubt, the foregoing indemnification includes without limitation the
obligation of Google to pay reasonable costs or expenses (including without
limitation attorneys' fees and costs) incu rred by any U of M Indemnitee
necessaty to comply with or respond to any third party subpoena or other
discovery request made of such U of M Indemnitee in connection with any such
indemnified third party claim , even if such cla im is not made against such U of M
Indemnitee. The foregoing indemnification excludes any third party claim to the
extent it: (a) relates to U of M's (or any U of M Indemnitee's) use or distribution of
the U of M Digital Copy; (b) arises from U of M's (or any U of M Indemnitee's)
failure to comply with the terms of this Agreement (includ ing without limitation
Atta chm ent A hereto); or (c) with respect to the indemnity under clause (4) only,
arises from U of M's (or any U of M Indemnitee's) exercise of any right.
performance of any act, or failure to comply with any obligation under the LibraryRegistry (Fully PartiCipating) Agreement, Host Site-Reg istry Agreement, any

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agreement with Rightsllolders or the Registry, any agreement with other
Participating Libraries, or any other agreement relating to the Settlement
(b) Google Contractollndemnification. Google shall defend , indemnify,
and hold harmless each U of M Indemnitee (provided, that Google shall not hold
harmless a U of M Indemnitee for claims for which Google is not actually
indemnifying such U of M Indemnitee) from and against any claim by any person
or entity (including without limitation any claim by any employee, contractor,
subcontractor, or agent of Google) based on : (1) any actual or alleged personal
injury, death, or property damage suffered by any of Google's directors, officers ,
employees, contractors, subcontractors, or agents in connection with performing
work under this Agreement; or (2) any actual or alleged status of any such
person as an employee, contractor, subcontractor, or agent either of a U of M
Indemnitee alone or of a U of M Indemnitee together with Google or any
contractor, subcontractor, or agent of Google as a result of any work performed
under this Agreement, or any benefit to which any such person may be entitled
as a result of such status: provided that the indemnity under this clause (2) will
not apply to any claim to the extent it results from U of M knowingly creating or
establishing the relationship of employer to such persons by, among other things,
intentionally exercising direction, supervision, or control over such persons or by
knowingly providing benefits to such persons. The foregoing indemnification
under clause (1) excludes any such claim to the extent arising from the willful
misconduct or negligence of U of M its Regents, employees, contractors, or
agents.
(c) Indemnity for Certain Security Breaches.

(1)
Security Indemnitv . Google shall defend, indemnify, and hold
harmless each U of M Indemnitee (which, for the avoidance of doubt, includes
without limitation U of M individually and in its capacity as a Hosting Fully
Participating Library pursuant to Section 7.2(b)(x) of the Settlement Agreement)
(provided, that Google shall not hold harmless a U of M Indemnitee for claims for
which Gotlgle is not actually indemnifying such U of M Indemnitee) against
claims by the Registry pursuant to Sections 8A(b) (Single or NonWilifulllntentional Breach of Security Implementation Plan) and BA(c) (Repeated
or Willful/Intentional Breaches of Security Implementation Plan) of the Settlement
Agreement (as incorporated into the Library-Registry (Fully Participating)
Agreement), except for claims under Sections SA(b) and SA(c) resulting from
willful misconduct or intentional and knowing misconduct by any U of M
Indemnitee and claims resulting from repeated breaches (a repeated breach
shall be the second (or more) of the same breach (i.e. , the second or more
breach with the same root cause) witnin a six (6)-month period) of the Security
Implementation Plan that create a significant risk of Prohibited Access , provided
that with respect to claims for wh ich indemnification is sought under Section
10 .1(c)(1) and (2) such indemnification will only apply if U of M in its LibraryRegistry (Fully Participating) Agreernent has not elected, as described in Section

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BA(d)(ii) of the Settlement Agreement, to be subject to judicial actions or
arbitrations under Article IX (Dispute Resolution) of the Settlement Agreement
allowing the Reg istry to seek all available remedies in equity and at law.
(2)
Reimbursement of Fees. In the event that a claim is brought
against a U of M Indemnitee pursuant to Sections 8.5 and/or 8.6 of the
Settlement Agreement (as incorporated into the Library-Registry (Fully
Participating) Agreement), and the result of such claim is that a judgment is
rendered against U of M (whether pursuant to arbitration or a negotiated
agreement approved by Google, such approval not to be unreasonably withheld,
delayed, or cond itioned) under Section B.4(b) or (c) of the Settlement Agreement
(as incorporated into the Library-Registry (Fully Participating) Agreement) with
respect to the conduct underlying such claim and Google would have been
required to indemnify such U of M Inclemnitee pursuant to paragraph (1) of this
Section had such claim been brought pursuant to Section 8.4(b) or (c) of the
Settlement Agreement (as incorporated into the Library-Registry (Fully
Participating) Agreement) , then Google will pay such monetary remedies
determined pursuant to Section 8.4(b) or (c) of the Settlement Agreement (as
incorporated into the Library-Registry (Fully Participating) Agreement) and will
reimburse each U of M Indemnitee for the reasonable legal fees and costs of
outside legal counsel incurred in contesting such claim brought under Section
8.5, 8.6, B.4(b) and/or 8.4(c).

(d)
Procedures for Google Indemnification. This Section 10.1(d)
shall apply to any claim for which Google is obligated to defend or indemnify any
U of M Indemnitee, pursuant to Sections 10.1(a), (b), or (c)(1) above. For each
such claim under Sections 10.1 (a) or (b) , Google shall either elect to defend such
claim or permit the U of M Indemnitee to defend such claim at Google's sale cost
and expense. For each such claim under Section 10.1(c)(1), Google shall
defend such claim at Google's sale cost and expense. In the event Google
defends any such claim : (1) Google sha ll select counsel reasonably appropriate
for such defense and shall pay for all costs incur·red by such counsel (including
without limitation experts engaged by such counsel); (2) Google shall have sale
control over the defense or settlement of any such claim , provided that Google
shall not enter into any settlement that includes any admission of wrongdoing by,
or any restriction (that does not already exist) on the activities of, any U of M
Indemnitee without the consent of such U of M Indemnitee. such consent not to
be unreasonably withheld or delayed, provided that such U of M Indemnitee shall
have no right to consent to any monetary amount to be paid in settlement by
Google; (3) such U of M Indemnitee shall provide reasonable assistance to
Google in such defense or settlement; and (4) such U of M Indemnitee may
participate in the defense of any such claim with counsel of its own choice, at its
own expense In addition, Google shall pay any damage awards or settlement
costs (only for settlements made or consen ted to by Google) that may be
incurred ."

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32. limitation of Liabilitv. The last sentence of Section 11 of the Agreement is
hereby deleted and replaced with the following : "EXCEPT FOR THE PARTIES'
INDEMN1FICATION OBLIGATIONS PURSUANT TO SECTION 10 ABOVE. AND
EXCEPT FOR DAMAGES ARISING FROM BREACH OF SECTION 6
(CONFIDENTIALITY) OR DAMAGES ARISING FROM BREACH OF SECTIONS 4.4 4 .6 (AND ASSOCIATED SUBSECTIONS), EACH PARTY'S LIABILITY UNDER THIS
AGREEMENT SHALL BE LIMITED TO THREE MILLION DOLLARS ($3,000,000) .
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NOTHING IN THIS
AGREEMENT SHALL PROHIBIT EITHER PARTY FROM SEEKING INJUNCTIVE
RELIEF AND ANY OTHER AVAILABLE EQUITABLE REMEDIES TO ENFORCE THE
PROVISIONS OF THIS AGREEMENT."

33. Collective Terms. The provisions set forth in the Collective Terms attached
hereto as Attachment A are hereby incorporated into the Agreement. U of M shall not
have any right to participate in the selection of. giving instructions to . or exercising or
waiving of rights through the Designated Representative or the Security Representative,
as the case may be, unless U of M has executed a Library-Registry (Fully Participating)
Agreement and agreed to the then-existing governance rules established from time to
time by the Interested Institutions (including any rules as to the sharing of fees and
costs of the Designated Representative and Security Representative . as the case may
be) .
34. Effectiveness. The terms of this Amendment shall be void if the Settlement
Agreement does not become effective and the parties mutually agree that the
Settlement Agreement is not anticipated to become effective. In the event the terms of
the Settlement Agreement are amended and such amendment represents a material
change of interest to U of M. then U of M may elect that the terms of this Amendment
shall be void as between Google and U of M. Notwithstanding the foregoing, U of M and
Google promptly shall execute an amendment to the Agreement. that implements the
following Sections of this Amendment in the event that the Settlement Agreement does
not become effective al1d the parties mutually agree that the Settlement Agreement is
not anticipated to become effective or U of M terminates the terms of this Amendment
as provided· in this Section 34: 4. 5. 6, 8. 9. 12. 13(a), 14, 15 (except for the last
sentence). 16, 19, 20 (provided that such section shall only be applicable to Digital
Copies of works that Google determines to be in the public domain), 21, 22. 24 (except
fOf 24(a) in the event the Settlement Agreement does not become effective). 25 (except
in the even! the Settlement Agreement does not become effective) . 26 , 27 , 28. 30 (but
provisions referenced therein that would have been added to the Agreement by this
Amendment shall be included only if such provisions are referenced in this Section 34).
31 (except for 10.1(c) (Indemnity for Certain Security Breaches» , 32 , and 34.

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35. No Other Amendment. Except as amended by this Amendment, all other
terms of the Agreement remain in full force and effect.
IN WiTNESS WHEREOF, this Amendment has been executed by persons duly

authorized.
On behalf of the Regents of the University
of

Goog fe Inc.
By:_ __

Print Name:_--:.._ __ _ _-'--_ _
Title:_ _ _ _ _ _ _ _ _ _ __

2_ _
O
Oate: _ _ _ O _9_.0_S_.1_9_--,--_

11 :03:02 -07'00'

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A TT ACHMENT A
COLLECTIVE AND CERTAIN SETTLEMENT AGREEMENT RELATED TERMS
(Fully Participating Libraries)
This Attachment A (the "Collective Terms';) reflects provisions that supplement
the Cooperative Agreement (the "Digitization Agreement") between the Regents of the
University of Michigan (the "Institution") and Google Inc. ("Google") dated June 15,
2005, as amended as of May
2009, and has been created in contemplation of the
settlement of certain litigation to which Google is a party, as reflected in that certain
Settlement Agreement (the "Settlement Agreement") in the form as filed with the United
States District Court for the Southern District of New York on October 28, 2008 in
connection with case number 05 CV 8136 between The Authors Guild Inc., et al. as
Plaintiffs and Google as Defendant. Capitalized terms used in these Collective Terms
that are not defi ned in these Collective Terms will have the meanings set forth in the
Settlement Agreement or, if not defined therein, in the Digitization Agreement. The
effectiveness of the provisions of these Collective Terms is conditioned upon the
effectiveness of the Settlement Agreement. In the event the terms of the Settlement
Agreement are amended and such amendment represents a material change of interest
to the Institution and is not acceptable to the Institution , then the Institution may elect
that these Collective Terms sha ll be void as between Google and the Institution.
Google and the Institution acknowledge their mutual expectation that the Institution is a
Fully Participating Library as defined by the Settlement Agreement. In the event of a
conflict between these Collective Terms and other provisions of the Digitization
Agreement, these Collective Terms will prevail as between Google and the Institution.
In the event that compliance with these Collective Terms or the Digitization Agreement
would ca use Google to breach the Settlement Agreement or would cause the Institution
to breach its Library-Registry (Fully Participating) Agreement, then such compliance
with these Collective Terms or the Digitization Ag reement will be excused. but only to
the extent that !?uch compliance would result in such a breach .

ft,

1.
Additional Defined Terms, The following capitalized terms, when used herein,
w ill have the following meanings:
a.

"Institution Digital Copy" means the U of M Digital Copy.

b.
"Institution Library Scan" means a Library Scan derived in whole or in part
from all or part of an Institution Library Work.
c.
"Institution Library Work" means a Book that the Institution previously has
made or in the future makes available to GOc.gle as a Library Work.
d.
"Interested Institution" means any library that (i) is either a party to an
ex isting Digitization Agreement and has executed an amendment to that Digitization
Agreement or a party to a new Digitization A9reement that contains terms substantially
identical to these Collective Terms (in the case of a Fully Participating Library) or the
parallel "Collective Terms" that apply to the Cooperating Libraries that com port with the

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terms hereof, as may be amended from time to time and (ii) has entered into a LibraryRegistry (Fully Participating) Agreement or Library-Registry (Cooperating) Agreement.

2

Use Outside of Settlement.

a. Google will not make use of any Institution Library Scan other than as
authorized by the Settlement Agreement unless Google ensures that the releases ,
rights, and protections that otherwise would have applied under the Settlement
Agreement and the coupling requirement set forth in Paragraphs 4(a) through 4(c) with
respect to that Institution Library Scan apply_
b.
If (i) a rightsholder opts out of the Settlement Agreement , (ii) Google makes
an agreement with such rightsholder regarding the display of Protected content from
any work, and (iii) Google makes any use pursuant to such agreement (other than any
use whereby access is provided to users free of charge) of any digital copy of such work
provided to it by any Interested Institution or made by Google from a copy of such work
provided to it by any Interested Institution, then Google will offer to such rightsholder the
opportunity to include such work in a service similar to the Public Access Service and,
to the extent Google is offering a service similar to the Institutional Subscription for
works not covered by the Settlement Agreement, in such service.

3.

Institutional Subscription Offering. Public Access Service and
A rbitration/Prici ng.

Availability of Institutional Subscription and Public Access Service.
a.
Google shall make the full Institutional Subscription offered to Higher Education
Institutions and the Public Access Service generally available (including to the Institution
with respect to such Institutional Subscription) within a reasonable period of time
following the Effective Date, but in no event later than two (2) years following the
Effective Date.
User Experience. Unless Google and the Institution agree otherwise, at a
b.
minimum , Google will provide the authorized users of the Institution (provided the
Institution is a then current subscriber to the full Institutional Subscription offered to
Higher Education Institutions) with First Class Access (as defined below) to the full
Institutional Subscription offered to Higher Education Institutions. As used herein , "First
Class Access" means a user experience consistent with Sections 4.1 (d) through 4 .1 (f)
of the Settlement Agreement, and that will always include the features set forth or
referred to in the last sentence of Section 4.1(d) of the Settlement Agreement and in
Sections 4. 1(e)(2-4) and 4 .1 (f) of the Settlement Agreement.
c.

Pricing Review.

(1) Initial Report. Sixty (60) days after the date Google first makes an
Institutional Subscription generally available to Higher Education Institutions and every
two years on the anniversary of such date thereafter (each a "Pricing Review Date"),
any interested Institution may request (each such Interested Institution , together w ith
such other Interested Institutions that so request or join in any such request, an

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"Initiating Library," and collectively the "Initiating Libraries") a review of the pricing of the
Institutional Subscription to determine whether the Pricing Categories of Institutional
Subscriptions offered to Higher Education Institutions and the revenue models referred
to under Paragraph 3(d) below (collectively, ihe "Reviewable Subscriptions"), are being
priced in accordance with the objectives set forth in Section 4 .1(a) (i) of the Settlement
Agreement (a "Pricing Review") by providing written notice to Google and all other
Interested Institutions prior to such Pricing Review Date . All Interested Institutions
together may initiate only one Pricing Review per Pricing Review Date. For purposes of
this Paragraph, "Pricing Category" shall mean a category for which there is a discrete
price for a set of Books offered to a class of Higher Education Institutions as part of an
Institutional Subscription as contemplated by Section 4.1 (a)(iv)(2) of the Settlement
Agreement. The "Pricing Reviewer" will be an independent, qualified third party
(independence and qualification determined in good faith by the Initiating Libraries)
designated by the Initiating Libraries, acting t.hrough the Designated Representative
consistent with Section 7.4 of the Settlement Agreement, subject to approval by Google
(which approval shall not be unreasonably withheld). The Pricing Reviewer shall
prepare a report of its findings (the "Pricing Review Report") and shall provide such
report to Google and all Interested Institutions. Google shall be responsible for the
Pricing Reviewer'S reasonable fees and costs incurred in conducting the Pricing Review
and preparing the Pricing Review Report, up to the Pricing Review Cap. For the
purposes hereof, the Pricing Review Cap shall mean (a) $100,000 per Pricing Review
for each of the first two possible Pricing Reviews; and (b) f<?r each Pricing Review
thereafter, the lesser of (i) $75,000 per Pricing Review, or (ii) $50,000 per Pricing
Review plus one-half of such fees and costs that exceed $50,000 in such particular
Pricing Review; provided, however, that such $100,000, $50,000 and $75,000 figures
will be subject to adjustment based on changes in the Consumer Price Index, based on
a 2008 base year. With respect to any Pricing Review, the Interested Institutions shall
be responsible for the Pricing Reviewer's fees and costs incurred in conducting the
Pricing Review and preparing the Pricing Review Report in excess of the Pricing
Review Cap. Google will provide or make available to the Pricing Reviewer the
following information within a reasonable period of time following the written request of
the Pricing Reviewer (the "Pricing Information"): (i) the number of postsecondary
academic institutions that have Institutional Subscriptions offered to Higher Education
Institutions as of the most recent anniversary of the Effective Date broken out by Pricing
Category; (ii) a histogram showing the percentage of postsecondary academic
institutions that pay each price within a Pricing Category; and (iii) Google's list price for
each Pricing Category in the Institutional Subscriptions offered to Higher Education
Institutions , as well as comparable information related to any pricing model referred to in
Paragraph 3(d) below. The Pricing Reviewer may request in writing additional
information from Google necessary to render a determination as set forth in this
Paragraph. Google will evaluate any such request and will provide such requested
information unless it reasonably determines lhat such information is not necessary for
the Pricing Reviewer to render a determination (such information shall also be
considered Pricing Infonnation). Pricing Information provided by Google: (1) wi ll be
subject to Google's reasonable confidentiality and production requirements; (2) will be
deemed Google's confidential information; (3) may not be shared With any Fully

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Participating Library or Cooperating Library (except to the extent reflected in the Pricing
Review Report as provided below) or other third party unless otherwise agreed to by
Googl8 or authorized in the non-disclosure agreement executed with Google by the
Pricing Reviewer governing the Pricing Information; and (4) may be used by the Pricing
Reviewer only for purposes described in this Paragraph. The Pricing Review Report
shall not contain Pricing Information provided by Google unless Google otherwise
agrees or the information is otherwise publicly available, but may contain conclusions
based on such information that do not reveal the underlying information itself. The
Pricing Reviewer shall execute a reasonable non-disclosure agreement provided by
Google to govern the use and disclosure of the Pricing Information disclosed by Google.
F or each of the first ten (10) Pricing Review Dates, if the Interested Institutions do not
initiate a Pricing Review, Google shall donate to the National Federation for the Blind or
similar non-profit charitable organization selected by Google and approved by the
Interested Institutions acting through the Designated Representative, such approval not
to be unreasonably withheld: (a) $100,000 in lieu of each of the first two possible
Pricing Reviews; and (b) $50,000 in lieu of each of the subsequent Pricing Reviews;
provided, however, that such $100,000 and $50,000 figures will be subject to
adjustment based on changes in the Consumer Price Index, based on a 200B base
year.
(2) Possible PriCing Challenge. Any Initiating Library may initiate an
arbitration pursuant to this Paragraph within ninety (90) days of receipt of a particular
Pricing Review Report with respect to relevant Reviewable Subscriptions. Any such
arbitration will be the exclusive mechanism to resolve disputes between Google and the
Initiating Libraries with respect to whether Google is pricing the Reviewable
Subscriptions in accordance with the objectives set forth in Section 4.1 (a)(i) of the
Settlement Agreement. The arbitration proceedings of all Initiating Libraries that submit
requests for arbitration prior to the ninety (90) day deadline following the date the
Pricing Review Report is provided to Initiating Libraries shall be combined into a single
arbitration proceeding . No Initiating Library rnay initiate an additional, separate
arbitration based on the same PriCing Review Report. The arbitration procedures shall
be as set forth in the Library-Registry Agreement, except as explicitly set forth herein.
Any decision of the arbttrator(s) shall be based on the objectives set forth in Section
4 .1(a) (i) of the Settlement Agreement, and the arbitrator(s) will not be authorized to
make any other findings or to award damages of any kind to either party All arbitrating
Initiating libraries shall deSignate representatives (the "Arbitration Representatives")
who , along with the Arbitration Representatives' legal counsel (p rovided such legal
counsel are bound by or have been instructed by their clients, to Google's reasonable
satisfaction, to comply with the same terms as the Arbitration Representatives with
respect to such PriCing Information set forth herein), may have access to the Pricing
Information subject to the same use restrictions applicable to the Pricing Reviewer. The
Pricing Information may not be disclosed to the Initiating Libraries in the arbitration other
than to the Arbitration Representatives . The Arbitration Representatives sha ll not
disclose the Pricing Information to anyone (other than the relevant arbitrator(s))
including any ind ividual at such Arbitration Representatives' Initiating library (including,
but not limited to, employees, executives, directors, trustees, regents, governors ,
contractors , and agents) without Google's prior written consent, which consent is not to

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be unreasonably withheld . Following the decision in any arbitration pursuant to this
Paragraph, the relevant such Arbitration Representatives may not be involved in
negotiations , or decisions with respect to such negotiations, with Google on behalf of an
Initiating Library regarding the future price of the subscription for that institution . Each
party tb the arbitration shall be responsible for its own costs and expenses incurred in
the arbitration.
(3) Pricing Adjustment. In the event any Initiating Library initiates an
arbitration pursuant to Paragraph 3(c)(2) above, if the arbitrator(s) determine that the
price of the relevant Reviewable Subscriptions should be lower than the existing price,
then Google shall (1) adjust the price of each then-current relevant Reviewable
Subscription by the Adjustment Amount (as defined in the following sentence) in the
manner described below, and (2) charge no more than the arbitrator-determined pricing
for any new or renewal retevant Reviewable Subscription for a period of at least two
years following the date of the arbitrator(s), decision (with arbitrator approved price
increases allowed within this two year period) . The "Adjustment Amount" for each
relevant Reviewable Subscription will be (x) the excess of the existing price of the
relevant Reviewable Subscription over the arbitrator-determined price, calculated on a
monthly basis, multiplied by (y) the number of months of the relevant Reviewable
Subscription occurring after the date of the notice to Google of the initiation of the
relevant arbitration pursuant to Paragraph 3(c)(2) above through the date of expiration
of the relevant term thereof. Google and the Institution (to the extent actually
participating in the arbitration) agree to cooperate in expediting the selection of an
arbitrator and the commencement and proceedings under any such arbitration, w ith the
goals of (i) commencing arbitration proceedings as promptly as is reasonably
practicable and (ii) having the time period between the date that the relevant
arbitrator(s) commences substantive proceedings in the arbitration and the date of
rendering of the arbitrator(s)' decision not be more than three months. If such time
period exceeds three months (which the arbitrator(s) may increase in his, her or their
discretion to up to six months), then the numoer of months referred to in clause (y)
above will be decreased by such excess number of months to the extent corresponding
to relevant months of the relevant Reviewable Subscription. The Adjustment Amount
will be applied (in the form of a pro rata credit, discount or other equivalent method
reasonably determined by Google) to reduce the balance remaining on the purchase
price of such then-current relevant Reviewable Subscription for the period after the date
of the arbitrator(s), decision or, if the Adjustment Amount exceeds the amount remaining
due for that period, such excess amount shall be refunded in cash by Google to the
subscribing institution . Google's total liability in connection with the aggregate
Adjustment Amounts for relevant Reviewable Subscriptions will not exceed Google's
Net Revenues from all Institutional Subscriptions offered to Higher Education
Institutions current and existing as of the date of the decision by the arbitrator(s) . "Net
R.evenues" means total gross revenues received by Google from all Institutional
Subscriptions offered to Higher Education Institutions less (i) the amount of any
discounts to the Interested Institutions (to the extent such amounts otherwise would be
included in gross revenues) and (ii) any revenue share payments that are paid by
Goog le to the Registry in respect of such gross revenues for that period . If the
aggregate Adjustment Amounts exceed Google's Adjustment Amount liability limit

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identified above, then the Adjustment Amount for each Reviewable Subscription
subscriber will be adjusted on a pro rata basis (based on amounts paid by each
institution) such that Google's total cash refund liability will not exceed the limit identified
above.
d.
New Revenue Models. If (1) Google makes available any new revenue
model pursuant to Section 4.7 of the Settlement Agreement, (2) such new revenue
model includes the offering of access to any Library Scans, and (3) such new revenue
model is offered to any Higher Education Institutions, then to the extent Google and/or
the Registry sets such price, such new revenue model shall be priced (both as to initial
pricing and pricing over time) in accordance with the objectives set forth in Section
4.1 (a)(i) of the Settlement Agreement, and the provisions of Paragraph 3(c) above, will
apply to such pricing.
4.

Google Coupling.

a.
Coupling Relative to Consumer Purchase. If Google, to the extent
authorized by the Rightsholder Dr the Settlement Agreement, uses any portion of a
Library Scan within the United States in Consumer Purchases or Other Revenue
Models (as defined below), then Google will provide the following services (the
"Designated Services") to United States users w ith respect to such Library Scan as
fol lows:
(1) Commencing upon the Effective Date, free search services Online
through Google Products and Services (including Preview Use or Snippet Display to the
extent permitted under the Settlement Agreement);
(2) Commencing upon the Effective Date, Library Links if there are online
sources that can provide the information accessed through the Library Link free of
charge to the user and without charge to Google;
(3) Commencing upon the initial public offering of the full Institutional
Subscription, but not later than five (5) years from the Effective Date, inclusion of the
Library Scan in Institutional Subscriptions offered to Higher Education Institutions
(includ ing in the Institutional Subscription referred to in Paragraph 3(a)) if authorized by
the Rightsholder under the Settlement Agreement; and
(4) Commencing upon the public offering of the Public Access Service, but
not later than five (5) years from the Effective Date, inclusion of the Library Scan in the
Public Access Service if authorized by the Rightsholder under the Settlement
Agreement.
b.
Worldwide Use. If Google, to the extent authorized by the Rightsholder or
the Settlement Agreement , uses any Library Scan in Consumer Purchases, in any new
revenue model that may be developed pursuant to Section 4.7 of the Settlement
Agreement or in any other manner in which Protected content is displayed that
generates any revenue to Google (other than any use in which such Protected content
is provided to users free of charge) in one or more countries other than the United
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States, and such Rightsholder has rights to authorize such uses both within the United
States and in such other countries, then Google will permit Higher Education Institution
subscribers to an Institutional Subscription that includes such Library Scan to make
such Library Scan available through such Institutional Subscription to its users in the
United States and such other countries.
c.
Effect of Failure to Satisfy Google Coupling . If Google and any Additional
Contemplated Rightsholder Services Provider and/or Third-Party Required Library
Services Provider collectively fail at any time to provide any of the Designated Services
as to a particular Library Scan, then Go091e shall not use, nor authorize any third party
to use, that Library Scan in Consumer Purchases or Other Revenue Models (as defined
below) unless and until Google and/or any Additional Contemplated Rightsholder
Services Provider and/or Third-Party Required Library subsequently provides such
Designated Service(s) with respect to the relevant Library Scan. For purposes of this
Paragraph 4, "Other Revenue Models" means business models that may be agreed to
by the Registry and/or Google under Section 4.7 of the Settlement Agreement and that
use Library Scans, except for any Googl e service in which access to a given Library
Scan is provided to the public free of charge.
d.
Matters Related to Use of Digital Copies in Lieu of Library Scans. The
provisions of this Paragraph 4(d) will apply to the Institution only if the Institution has
provided to Google and/or Google has created not less than 50,000 Institution Library
Scans from the Institution's Selected Content. From and after the date that the number
of Excluded Replaced Books first exceeds the lesser of (1) 200,000, or two percent
(2%) of all Books that are not Commercially Available as to which Library Scans at any
time were made by or for Google (the "Exclusion Threshold ") , then Go091e will, for all
Excluded Replaced Books as to which a Library Scan at any time was made by or for
Google from the Institution's Selected Content and which becomes an Excluded
Replaced Book following the date the Exclusion Threshold is reached, obtain for and
provide to the Institution rights and functionality with respect to such Excluded Replaced
Books materially equivalent to the rights and functionality of an Institutional Subscription
then held by the Institution (and subject to the terms and conditions thereof) had the
Excluded Replaced Book been available as part of such Institutional Subscription . An
"Excluded Replaced Book" is a Book as to wllich (i) a Library Scan at any time was
made by or for Google; (ii) the Rightsholder has (x) Removed the Book (when it existed
as a Library Scan) pursuant to Section 3.5(a) of the Settlement Agreement and
subsequently restored such Book to the terms of the Settlement Agreement and Google
has not made a Library Scan of such Book following such restoration , or (y) excluded a
Book that is not Commercially Availab ie from Institutional Subscriptions pursuant to
Section 3.5(b) of the Settlement Agreement; (iii) a Digital Copy (other than a Library
Scan) is made by or for Google subsequent or incident to such Removal or exclusion ;
and (iv) the Rightsholder has authorized and Go091e has offered, pursuant to the
Settlement Agreement, Consumer Purchases or any Other Revenue Models for the
Book.

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09

Research Corpus.

a.
Cooperation in Research Corpus. Following the Effective Date, Google
will exercise (when and if exercisable) all rights granted under Section 7.2(d) of the
Settlement Agreement to enable the creation and implementation of the Research
Corpus at Host Sites as determ ined and conditioned in accordance with such Section.
Google will provide to each Host Site , in a manner to be mutually agreed upon by
Google and the Host Site(s), a set of Digital Copies of all Books (other than Books that
have been Removed by Rightsholders pursuant to Section 3.5 of the Settlement
Agreement or Library Scans that have been withdrawn pursuant to Section 7.2(d)(iv) of
the Settlement Agreement) and Digital Copies of public domain works Digitized in
connection with the Google Library Project, unless restricted by the library that provided
such works (provided that Google shall not cause or provide incentives to any library to
impose any such restriction), to each of the Host Sites , subject to the Host Site(s)
agreeing to the Host Site-Registry Agreement and a separate agreement with Google
incorporating the terms of the Settlement Ag reement governing the Research Corpus
and restrictions on sharing the content. Google shall offer Google Partner Program
pub lishers the ability to include the if works in the Research Corpus.
b.
Google Support. Go091e will make appropriate personnel reasonably
available to provide, at no charge, up to 100 personnel hours per Host Site, per year for
two years following the Effective Date consisting of technical start-up advice related to
the creation and operation of the Research Corpus to each Host Site, subject to the
Host Site(s) executing services agreements with Google containing Google's customary
terms and conditions for such services. In addition, Google shall provide not less than
$5 ,000 ,000 in aggregate to be used at the direction of the Interested Institutions (acting
through the Designated Representative in the manner set forth in Section 7.4 of the
Settlement Agreement) for the development of one or more Host Sites (including
Google as a Host Site), of which $500 ,000 will be deposited into an escrow account by
Google after the execution by at least one Fully Participating Library or Cooperating
Library of a Digitization Agreement or an amendment to a Digitization Ag reement
incorporating these Collective Terms within fifteen business days after written request
by such Fully PartiCipating Library or Cooperating Library , an additional $1,000,000 will
be deposited into an escrow account by Google within fifteen business days after the
last date of execution of Digitization Agreements and/or amendments to Digitization
Agreements incorporating these Collective Terms by at least three Fully Participating
Libraries and/or Cooperating Libraries (excluding the first Fully Participating or
Cooperating Library that triggered the initial $500.000 payment), and the remainder will
be deposited by Google into the escrow account within fifteen business days after the
Effective Date. The escrow account will be set up by the Interested Institutions, acting
through the Designated Representative in the manner set forth in Section 7.4 of the
Settlement Agreement, with an independent third party approved by Google, such
approval not to be unreasonably withheld . The costs for the creation and administration
of the escrow account shall be paid out of the funds in escrow. The Interested
Institutions may use the escrowed funds solely for the development of one or more Host
Sites immediately upon their deposit into the escrow account by Google. Subject to the
foregoing restriction, the Interested Institutions' use of the escrowed funds in the

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development of the Host Site(s) shall be at their sale discretion. The Interested
Institutions, acting though the Designated Representative in the manner set forth in
Section 7.4 of the Settlement Agreement, shall designate a representative (which may
be the DeSignated Representative) authorized to deal with Google with respect to the
creation and administration of the escrow account, the deposit of the funds, and all
other matters relating to the Host Site(s), and Google shall be obligated to deal only with
such representative. The Interested Institutions shall be bound by the decision of such
designated representative in the same manner as with respect to the Designated
Representative under Section 7.4 of the Settlement Agreement.
c.
Content Improvements and Delivery. After the initial delivery of the
Research Corpus to a Host Site, within thirty (30) days after Google Digitizes a Book
required to be in the Research Corpus or materially improves a Digital Copy of a Book
contained in the Research Corpus , Google will provide or make available a copy of the
frle for each such Digital Copy to the Host Site. In addition, Google will provide each
Host Site access to download a copy of the electronic file for each such Digital Copy of
a Book each time an electronic file for that Book is improved by (i) any Fully
Participating Library or Cooperating Library provided that such library makes the
improved file available to Google, (ii) any third party that improves the quality of a Digital
Copy of such Book to be used in the Accommodated Services under the terms of a
Library-Registry (Fully Participating) Agreement, Library-Registry (Cooperating)
Agreement, and/or the Settlement Agreement, provided that such third party makes the
improved file available to Google, or (iii) any third party to the extent Google is so
permitted under a contract with such third party and provided that such third party
makes the improved file available to Google. If a Host Site elects to download a copy of
the improved electronic file for any such Book. the Host Site may download only the
most current version of such file. Google will make improved versions of the files
available to each Host Site within a reasonable period of time after they are created by
another party and provided to Google as contemplated by this Paragraph . If an
Interested Institution improves a Digital Copy of a BoOk, a public domain work or other
work contained in the Institution Digital Copy, it shall provide the improved file to Google
within a reasonable period of time. In connection w ith the furnishing of required content,
Google agrees from time to time to (x) use delivery methods to be mutually agreed upon
between Google and the Host Site that are reasonably appropriate to timely delivery of
the volume of content being delivered ; (y) employ mutually agreed upon technologies
that provide reasonably appropriate downloading and throughput speeds to each Host
Site; and (z) make available servers (or use some other mutually agreed upon
mechanism for delivery of data) that have reasonably appropriate capacity and rate of
connectivity.
d.
Technical Cooperation . Google will reasonably cooperate with each Host
Site to establish mutually agreed commu nications and dispute resolution procedures
with the goal that Host Site issues related to technical performance (e.g. related to
download issues) be addressed expeditiously.

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Accommodated Service.

a.
Availability of Accommodated Service. Google acknowledges its intent to
make the Accommodated Service generally available within two (2) years following the
Effective Date.
b.
Reports and Notice. Following the Effective Date, Google wi1l report,
annually, to the Designated Representative on its progress to develop, provide, and
maintain the Accommodated Service, including information about the time-frame in
which Google believes that the Accommodated Service will be made available. Such
reports will be considered Google's confidential information , except that the Designated
Representative can disclose the reports to other Interested Institutions under the same
confidentiality restrictions as are applicable to the Interested Institution of the
Designated Representative. If Google determines that it will not implement the
Accommodated Service during the period referred to in Section 7.2(g)(ii)(2)(a) of the
Settlement Agreement or not maintain it after its initial launch, it will promptly notify the
Designated Representative (who may so notify the Interested Institutions).
c.
Database. Following the initial public offering of the Accommodated Service,
Google shall maintain an accessible, searchable, on-line database that will enable the
public to determine which Library Works are currently accessible through the
Accommodated Service.
7.
Advertising and Institutional Subscription. The provisions of this Paragraph 7
will apply to the Institution only if the Institution has provided to Google and/or Google
has Digitized not less than 50,000 Institution Library Scans from the Institution's
Selected Content. The Institution acknowledges that the Institutional Subscription
offered to Higher Education Institutions may contain advertising as determined by
Google. However, Google agrees that in the event it offers an Institutional Subscription
that does not contain advertising to any Higher Education Institution, it will offer such
Institutional Subscription that does not contain advertising to the Institution (Google
reserves the right to price such Institutional Subscription differently than the Institutional
Subscription that contains advertising).
8.
Commercial Availability and Classification by Google. Google will use the
process set forth in Section 3.2(d) of the Settlement Agreement to classify each work as
Commercially Available or not and to correct mistakes made in initially classifying a
work as Commercially Available (includ ing when notified in writing by a Fully
PartiCipating Library or a Cooperating Library of any purported misclassification) in
accordance with the terms of the Settlement Agreement. If any Fully Participating
Library or Cooperating Library notifies Google in writing that rt believes in good faith that
a work may have been mistakenly classified as Commercially Available, or that the work
may no longer be Commercially Available , Google will evaluate such information and, if
in its reasonable judgment it concurs, notify the Registry to properly classify such work.
9.

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a.
Exercise of Certain Rights. Google will exercise its rights under Section
3.5(b )(vi) of the Settlement Agreement to the extent necessary to fulfill any relevant
obligations of Google to the Institution.
b.
No Obligation to Collect. Google will not condition availability of the Public
Access Service on the relevant library agreeing to collect for Google amounts referred
to in Section 4.8(a)(ii) of the Settlement Agreement.
10.

Information.

a.
Institution Digital COPY. For each work contained in the Institution Digital
Copy and in the equivalent of the Institution Digital Copy of each other Interested
Institution, Google shall use commercially reasonable efforts to make available to the
Institution (which may be accomplished through delivery to the Designated
Representative for distribution to the various Interested Institutions) access to the
following information in a generally accepted electronic format: (i) a unique identifier
number for the work; (ii) whether Google is treating the work as being in the public
domain in the U.S., along with the factual basis for such determination (but not analysis
or reasoning with respect to such determination); (iii) whether the Registry has objected
to a book as being in the public domain pursuant to Section 3.2(d)(v) of the Settlement
Agreement and the outcome of any dispute relating thereto; (iv) whether Google is
treating the work as being a Government Work; (v) whether Google is treating the work
as being subject to the Settlement Agreement; (vi) the status of the work with respect to
its Commercially Available classification if such work is governed by the Settlement
Agreement, including but not limited to any notices of suspected misctassification by the
Registry pursuant to Section 3.2(d)(iii) of the Settlement Agreement and any corrections
to such classification made by Google, whether or not in response thereto; (vii) whether
Google is using any portion of the work in Consumer Purchases or in any Other
Revenue Model : (viii) whether Google is including the work in any of the Required
Library Services; (ix) with respect to works that are Government Works or Public
Domain Books, whether Google has received a request from a Rightsholder of any
Insert in any such Government Work or Public Domain Book to Exclude such Insert
from Display Uses (including the identity of the Rightsholder and the relevant Insert),
any determination by Google to accept or reject such request, and the resolution of any
dispute relating thereto pursuant to Section 3.5(b)(vii} ofthe Settlement Agreement; and
(x) whether, if Google is aware, the work has been registered with the United States
Copyright Office.
b.
Information to Perform Obligations. Within a reasonable period following
receipt of a written r~quest from the Institution , Google shall provide to the Institution all
data provided by the Registry to Google pursuant to Section 6.5(b) of the Settlement
Agreement , including all updates, as is reasonab ly necessary for the Institution to
perform its obligations under its Library-Registry Agreement.
c.
Public Disclosure of Public Domain Determinations. Google will make
available to the general public the information described in Paragraph 10(a)(ii) .

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d.
Pricing Strategy. Within a reasonable period following receipt of a written
request, Google shall make available to the Designated Representative the initial
Pricing Strategy and any subsequent Pricing Strategies relating to Institutional
Subscriptions offered to Higher Education Institutions that are agreed upon by Google
and the Registry pursuant to Section 4.1(a) of the Settlement Agreement. The
Designated Representative may distribute such pricing strategies to Interested
Institutions. Google will inform the Institution of any Google Products and Services that
meet the definition of "Adjunct Product" in the Settlement Agreement and whether the
Registry has elected to renegotiate under Section 4.1 (a)(ix)(3) of the Settlement
Agreement.
e.
Google Exclusion Decisions. Within a reasonable period following receipt
of a written request, Google will make available to the Designated Representative (who
may then disclose same to the Interested Institutions) : (i) a list of Books Google has
Digitized or received Digital Copies of and a list of Books of which it is making Display
Uses; and (ii) information concerning whether the exclusion of Books from one or more
Display Uses was for editorial or non-editorial reasons, and if for non-editorial reasons,
whether the exclusion was for quality, legal or technical concerns. For the avoidance of
doubt, the Institution may publicly disclose the identity of Books excluded for editorial
reasons at any time,
f.
Required Library Services Information. Within a reasonable period
following receipt of a written request, Google wilt disclose to the Designated
Representative (who may then disclose same to the Interested Institutions) the following
information to the extent reasonably necessary for the Institution to monitor and enforce
Section 7 .2( e) of the Settlement Agreement and Paragraph 4(d) of these Collective
Terms, including without limitation: (i) the number of Library Scans made by or for
Go091e at any time; (ii) the number of such Library Scans that are Commercially
Available; (iii) the number of Excluded Replaced Books; (iv) the number of Not Counted
Library Works ; (v) the number of Display Books: (vi) the number of No Display Books;
(vii) the number of Library Scans that are not authorized to be included in Institutional
Subscriptions pursuant to the terms of the Settlement Agreement: (viii) the Required
Library Services being provided for each of the Library Scans; and (ix) the number of
Library Scans for which each of the Required Library Services is being provided.
Google will identify, if requested by the Designated Representative. the relevant specific
Books with respect to each category of information provided above, and the Designated
Representative may request such additional information no more than once in any sixmonth period.

g.
Confidentiality and Copying Restriction. The information made available
by Google pursuant to Paragraphs 10(a)(iii), (vi) and (ix), 10(d), and 10(f) above may
not be shared by the Institution with third parties as Confidential Information of Google
pursuant to the confidentiality provisions of the Digitization Agreement, except as
provided therein . as otherwise required by law, with prior written approval from Google,
for disclosure to another Interested Institution or (except as to information provided
pursuant to Paragraphs 10(d) and 10(f) for relevant disclosure on a confidential basis
to a third party that is hosting the Institution's LDC. As to the information made

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available by Google pursuant to Paragraphs 10(a)(ii) (as to the factual basis
information, but not Google's analysis or reasoning, only), (iv), (v), (vii), (viii) and (x), the
Institution is free to use same internally or di~;close same to another Interested
Institution, and Google acknowledges that such information is not subject to the
confidentia lity provisions of the Digitization Agreement; however the Institution agrees
that it will not publicly discfose any copy (whether in hard copy or digitally) of all or any
substahtial portion of any particular database originally provided by Google pursuant to
any such Paragraph so long as such database is not first publicly disclosed by Google
or any other person, except as may be provided in the Digitization Agreement, as may
be otherwise required by law, or with prior written approval from Google. With respect
to the identification of any Book pursuant to this Section 10, Google shall provide at
least one unique identifier number used by Google to identify such Book and the barcode or other identifier associated with the relevant Participating Library's Book used
when Digitizing the Book.
h.
Quarterly Updates. Except as otherwise set forth herein , following its initial
provision, Google will update on a quarterly basis information provided pursuant to this
Paragraph 10 that is required for the Interested Institution to meet its obligations with
respect to the Collective Terms , Digitization Agreements. or Library-Registry
Agreements. Except as otherwise set forth herein, within a reasonable period following
receipt of a written request, Google will update the information provided by Google
pursuant to this Paragraph 10 following its initial provision to the Institution, but in no
event shall it be obligated to update such information more frequently than quarterly.
The information provided under this Paragraph 10 shall be accurate as to Google's
knowledge at the time of its provision to the Designated Representative, the Institution
or the public, as the case may be.
Misclassification. If the Institution informs Google of any works that it
i.
believes have been miSclassified as not in the public domain (or of a systematic
misciassification of works) and provides supporting reasons and information, as well as
information regarding the processes used to verify such information, then Google shall
use commercially reasonable efforts to appropriately consider such information (and to
remedy any such systematic misclassification Google determines to exist). To the
extent Google determines that any work is in the public domain as a result of the
foregoing , it shall treat such work as being in the public domain .
Enforcement by Google. Google hereby agrees to enforce for the benefit
j.
of the Institution the following provisions of the Settlement Agreement: Sections 6.S(b)
(first sentence). 6.B(c), and 6.6(d) , subject to any confidentiality and privacy restrictions,
11. Designated Representative and Security Representatives Matters. The
Institution agrees to select , give instructions to, and exercise or waive certain rights
through , the Designated Representative and the Security Representatives, as set forth
in Section 7.4 of the Settlement Agreement.
12, Provisions of Digitization Agreements . Google will reflect, in each Digitization
Agreement with a Fully PartiCipating Library or Cooperating Library that such library will

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not have any rights to participate in the selec-:ion of, giving instructions to or exercising
or waiving certain rights through the Designa:ed Representative or the Security
Representatives, as the case may be, unless such Fully Participating Library or
Cooperating Library agrees to the terms of Section 7.4 of the Settlement Agreement
and the then existing governance rules as established from time to time by the Fully
Participating Libraries and the Cooperating Libraries (including any rules as to the
sharing of fees and costs of the Designated Representative and the Security
Representatives, as the case may be) .
13. References . All references herein to provisions of the Settlement Agreement are
intended to mean and include, as reasonably appropriate, such provisions as
incorporated into the Library-Registry Agreement (whether pursuant to an Exhibit
thereto or otherwise) to which the Institution is a party.

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that furthers the universities' teaching, research, and service missions. TRLN is one of the oldest consortia in the country. The hallmark of
cooperation among the four universities has been a highly successful cooperative collection development program that has resulted in little
duplication across institutions and a high degree of uniqueness in the respective collections. With the licensing of electronic content, the
cooperation has expanded to include electronic resources. The shared collections are made available to users from any TRLN library through
reciprocal borrowing arrangements and through a privileged delivery service. Another of TRLN's strengths is the broad range of staff
development, continuing education, and training opportunities that are offered locally and attended widely by all levels of staff.
More information can be found at http://www.trln.org (http://www.trln.org)
• University of California (#)
About the University of California Libraries
The University of California libraries comprise world-class collections and innovative services. The University of California has built 10 campus
libraries of distinction, comprising world-class collections that give a competitive edge to UC research and instruction.
More than 100 libraries on the UC campuses support the University's teaching and research. Collectively, the UC libraries make up the largest
research/academic library in the world, with over 35 million volumes in their holdings and significant digital collections. At UC, faculty, students,
and staff have access to nearly all of the resources that combine to comprise the libraries' collective holdings; that is, to the largest university
research library in the world.
Visit http://libraries.universityofcalifornia.edu/ (http://libraries.universityofcalifornia.edu/) for more information.

Individual Institutions
• Arizona State University (#)
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• Boston University (#)
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(http://hul.harvard.edu/)

• Indiana University (#)

http://www.hathitrust.org/community

6/22/2012

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(http://www.libraries.iub.edu/)

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(http://libraries.mit.edu/about/about.html)

• McGill University (#)
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http://www.hathitrust.org/community

6/22/2012

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• Washington University (#)
• Yale University Library (#)
Please see our Eligibility and Agreements (eligibility_agreements) page for information about how to be involved!

About Help - - - - - - - - - Feedback Take-Down Policy Privacy Contact
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http://www.hathitrust.org/community

6/22/2012

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EXHIBIT C

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Certification Report on the
HathiTrust Digital Repository

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CRL Report on HathiTrust Audit and Certification
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Executive Summary
The Center for Research Libraries (CRL) conducted a preservation audit of HathiTrust (www.HathiTrust.org)
between November 2009 and December 2010, and on the basis of that audit certifies HathiTrust as a trustworthy
digital repository. The CRL Certification Advisory Panel has concluded that the practices and services described
in HathiTrust public communications and published documentation are generally sound and appropriate to the
content being archived and to the general needs of the CRL community. Moreover the Panel expects that in the
future, HathiTrust will continue to be able to deliver content that is understandable and usable by its designated
community.
CRL certification applies to the repository’s ability to preserve and manage digital files of books digitized by the
University of Michigan, Google, and the Internet Archive, as well as the digital files generated from books digitized by
other providers that conform to comparable standards.
This certification is based upon review by CRL and members of its Certification Advisory Panel of extensive
documentation gathered by CRL as well as data and documentation provided by HathiTrust between November
2009 and December 2010; and a site visit held in May 2010. CRL’s analysis was guided by the criteria included in the
Trustworthy Repositories Audit and Certification Checklist (TRAC), and other metrics developed by CRL through its
various digital repository assessment activities.
CRL conducted its audit with reference to generally accepted best practices in the management of digital systems;
and with reference to the interests of its community of research libraries and the practices and needs of scholarly
researchers in the humanities, sciences and social sciences in the United States and Canada. The purpose of the audit
was to obtain reasonable assurance that HathiTrust provides, and is likely to continue to provide, services adequate
to those interests and needs without material flaws or defects and as described in HathiTrust’s public disclosures. The
CRL audit provides a reasonable basis for these findings.
CRL assigns HathiTrust the following levels of certification (the numeric rating is based on a scale of 1 through 5, with
5 being the highest level, and 1 being the minimum certifiable level):1

Category

HathiTrust Rating

A. Organizational Infrastructure

2

B. Digital Object Management

3

C. Technologies, Technical Infrastructure, Security

4

The ratings reflect the existence of robust systems and sound processes in most areas, in particular those areas
addressed in TRAC category C and, to a lesser extent, in category B metrics; and the still emerging status of systems
and processes addressed in category A metrics. In the course of the audit, the Certification Advisory Panel identified
several issues that CRL urges HathiTrust to address to more fully satisfy the concerns of CRL libraries. Those issues
are described in Section B, Detailed Audit Findings, below, and pertain to specific criteria in the TRAC checklist.
HathiTrust has agreed to address these issues and, as a condition of continued certification, to make certain
disclosures to CRL periodically. Those requirements for periodic disclosure are outlined in Section C of this report.

1

A working version of the schema CRL uses in providing summary ratings of a repository’s compliance with the TRAC criteria is available at:
http://www.crl.edu/archiving-preservation/digital-archives/metrics-assessing-and-certifying/crl-ratings.
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About the Audit Participants
HathiTrust

The HathiTrust (www.HathiTrust.org) digital repository was established by the University of Michigan Libraries in
October 2008. HathiTrust offers academic and research libraries the opportunity to combine resources to build and
maintain a large scale repository. Participating members include research libraries in the United States and Europe.
The majority of HathiTrust’s content was digitized through the Google Books project, which has worked with libraries
to scan books on library shelves. Additional content comes from the Internet Archive and from collections digitized by
partner libraries. As of December 2010, HathiTrust had ingested approximately 7.5 million volumes. Repository costs
are shared by the participating members. The actual repository systems are located at the University of Michigan in
Ann Arbor and at Indiana University in Bloomington.

Center for Research Libraries

The Center for Research Libraries (CRL - www.crl.edu) is an international consortium of university, college, and
independent research libraries. CRL supports advanced research and learning in the humanities, sciences, and social
sciences by ensuring the survival and accessibility of source materials vital to those disciplines. In order to enable its
community to accelerate the shift to electronic-only resources in a careful and responsible manner, CRL has a hybrid
strategy of preserving and maintaining shared physical collections of materials and certifying digital repositories of
interest to its community.
CRL analysis of HathiTrust documentation and operations was undertaken by Marie Waltz and other CRL staff.
Additional technical support for the site visit and the assessment of HathiTrust repository systems and architecture
was provided by James A. Jacobs, Data Services Librarian Emeritus, University of California, San Diego.
To guide its HathiTrust audit CRL enlisted a panel of advisors representing the various sectors of its membership.
The Certification Advisory Panel includes leaders in collection development, preservation, library administration, and
digital information technology, and is so constituted as to ensure that the certification process addresses the interests
of the entire CRL community.

Martha Brogan (Chair)
Director of Collection Development & Management
University of Pennsylvania

Anne Pottier
Associate University Librarian
McMaster University

Winston Atkins
Preservation Officer
Duke University

Oya Y. Rieger
Associate University Librarian for Information
Technologies
Cornell University

Bart Harloe
Director of Libraries
St. Lawrence University

Perry Willett
Digital Preservation Services Manager
California Digital Library

William Parod
Senior Repository Developer
Northwestern University Libraries

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A. Audit and Assessment Methodology and Criteria
This assessment was undertaken to determine whether or not HathiTrust meets the commitments it has made
in regard to the long-term preservation of digital scholarly content for the academic community and whether the
repository complies with established criteria for trusted digital repositories. The assessment included a site visit, a
review of the information independently gathered by CRL from published and unpublished sources, and a review of
documents and documentation provided by HathiTrust.
CRL conducted its audit with reference to:
n

generally accepted best practices in the management of digital systems

n

the interests of the CRL community of research libraries

n

t
 he practices and needs of scholarly researchers in the humanities, sciences, and social sciences in the
United States and Canada.

n

the criteria included in Trustworthy Repositories Audit & Certification: Criteria and Checklist2

n

the Open Archive Information System reference model3 (OAIS)

n

other metrics developed by CRL through its analyses of digital repositories.

The general metrics used by CRL in such assessments are based on the Trustworthy Repositories Audit and
Certification (TRAC) checklist, and on other metrics developed by CRL through its analyses of digital repositories.
TRAC was developed by a joint task force, created by the Research Libraries Group (RLG) and the National Archives
and Records Administration in 2003 to provide criteria for use in identifying digital repositories capable of reliably
storing, migrating, and providing long-term access to digital collections. TRAC represents best current practice and
thinking about the organizational and technical infrastructure required to be considered trustworthy and thus worthy
of investment by the research and libraries communities.
CRL assessed HathiTrust on each of the three categories of criteria specified in TRAC and has assigned a level of
certification for each. The numeric rating (below) is based on a scale of 1 through 5, with 5 being the highest level, and
1 being the minimum certifiable level:
TRAC Category

HathiTrust Rating

Organizational Infrastructure

2

Digital Object Management

3

Technologies, Technical Infrastructure, Security

4

The basis for assignment of these ratings is provided in Section B, Detailed Audit Findings, below.
It should be noted that CRL certification of HathiTrust applies specifically to the repository’s ability to preserve and
manage digital files of books digitized by the University of Michigan, Google, and the Internet Archive, as well as the
digital files generated from books digitized by other providers that conform to comparable standards. CRL did not
assess SDR procedures and processes for acquiring and managing more complex digital objects such as audio,
video, archived Web sites, or other types of content.

2
3

TRAC - http://www.crl.edu/sites/default/files/attachments/pages/trac_0.pdf3 OAIS - http://public.ccsds.org/publications/archive/650x0b1.pdf
OAIS - http://public.ccsds.org/publications/archive/650x0b1.pdf

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B. Detailed Audit Findings
On the basis of the audit, CRL identified areas in which HathiTrust will need to improve processes or provide greater
disclosure of information about those processes. These areas correspond to specific TRAC criteria or to features of the
repository that members of the Certification Advisory Panel believe are important to the CRL community.
The specific areas identified for improvement are:
1. Definition of Rights and Ownership of HathiTrust Enterprise Assets
(TRAC criteria A3.3, A3.7, and A4.3)

“Repository commits to transparency and accountability in all actions supporting the operation and management of
the repository, especially those that affect the preservation of digital content over time.” (TRAC criterion A3.7)
HT is not a separate legal entity, and so cannot legally own the capital equipment, content, metadata, and other assets
acquired or generated by the partnership. HathiTrust therefore must clearly define and establish where ownership
and control of the repository’s major assets and other property essential to the continued access and preservation of
repository content reside.
The ownership of the individual objects within the repository is clearly specified in agreements with the depositors.
However, it would be appropriate to clarify the ownership of the aggregate HathiTrust database; the rights and
ownership of new content (such as derivative files, metadata, etc.); and rights to the non-content assets of the
operation, including software and system tools to be developed in the future.
2. Succession or Disposition Plan for HathiTrust Assets (TRAC A1.2)

TRAC A1.2 requires “an appropriate, formal succession plan, contingency plans, and/or escrow arrangements in place
in case the repository ceases to operate or the governing or funding institution substantially changes its scope.”
Most 501c3 organizations provide in their bylaws for the disposition of property in the event of the organization’s
dissolution. HathiTrust should explicitly address the transferability or disposition of its assets in the event of
discontinuation of repository operations. Under present circumstances the University of Michigan, as parent
organization of the repository, would seem to be the owner of those assets and arbiter of such decisions, absent
agreements to the contrary.
3.  larify and Strengthen the Quality Assurance and Print Archiving Components of
C
the HathiTrust Program (TRAC A3.8 and B1.1, B1.8, B1.7 and B2.4)

TRAC criterion A3.8 requires that the repository “commits to defining, collecting, tracking, and providing, on
demand, its information integrity measurements.” Criterion B1.1 requires that the “Repository identifies properties it
will preserve for digital objects,” and B1.7, 1.8, and 2.4 address the recording of information about rejected SIPs.
One explicit goal described in the HathiTrust mission statement is to “coordinate shared storage strategies among
libraries, thus reducing long-term capital and operating costs of libraries associated with the storage and care of
print collections.” The repository should put in place and clarify its plan for achieving that goal, as the cost reduction
described is a relevant metric of the value of HathiTrust and its services. The new HathiTrust pricing model, to be
introduced in 2013, will directly correlate the overlap between the repository corpus and the print holdings of the
participating libraries. This will increase pressure for participating libraries to divest of print volumes available
through the repository.
The quality assurance measures for HathiTrust digital content do not yet support this goal. Inspection criteria and
standards are in place for materials ingested from the Google Books project, but it is not clear what results when an
object fails such inspection. It is also unclear to what level of quality review materials digitized by partner institutions

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or those made available through entities such as the Internet Archive are subjected. This will be material to library
decisions on whether to retain, conserve, or dispose of corresponding physical copies of books represented in the
repository.
Currently, and despite significant efforts to identify and correct systemic problems in digitization, HathiTrust only
attests to the integrity of the transferred file, and not to the completeness of the original digitization effort. This may
impact institutions’ workflow for print archiving and divestiture.

C. Ongoing Requirements
The TRAC document notes that “. . . attaining trusted status is not a one-time accomplishment—achieved and
forgotten. To retain trusted status, a repository will need to undertake a regular cycle of audit and/or certification.”
To that end CRL expects that in addition to acting to remedy the issues identified above HathiTrust will also make
certain disclosures on a regular basis. CRL and HathiTrust have agreed that ongoing certification is contingent upon
HathiTrust making the following disclosures every two years:
n

A
 n item- or volume-level listing of new content added to the repository since prior certification. (Public
disclosure through the current HathiFiles inventory would fulfill this requirement.)

n

D
 escription of any significant changes in repository system architecture or configurations, operating systems
and/or critical software;

n

N
 ew agreements and contracts with key depositors of content, content users, major funders or sources of
revenue, and providers of critical repository services;

n

N
 ew key policies regarding acquisition, management, and disposition of archived content and related files and
metadata;

n

R
 ecords of significant events (such as content migrations, system failures, loss or corruption of digital
content) and significant changes in the characteristics of digital content ingested since the most recent audit,
such as server logs; and of significant events and changes in the operations of the repository.

n

T
 he most recent three years of financial statements for the repository organization or service unit. The
financial statements should indicate the categories and, where appropriate, sources of revenue and the level
of same; the functional allocation of expenses; and changes in the financial position of the organization
supporting the service unit.

n

R
 evenue and expense projections by function, for the repository organization or service unit, for the next
three years.

Certification is also contingent upon HathiTrust’s agreement to a periodic, systematic sampling and inspection of
the repository’s archived content by CRL, or by a third party designated by CRL, using either a manual or automated
process as determined by mutual agreement between CRL and HathiTrust.

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KILPATRICK TOWNSEND & STOCKTON LLP
Joseph Petersen (JP 9071)
Robert Potter (RP 5757)
1114 Avenue of the Americas
New York, NY 10036
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Joseph M. Beck (admitted pro hac vice)
W. Andrew Pequignot (admitted pro hac vice)
Allison Scott Roach (admitted pro hac vice)
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE AUTHORS GUILD, INC., ET AL.,
Plaintiffs,

Case No. 11 Civ. 6351 (HB)

v.
HATHITRUST, ET AL.,
Defendants.

DECLARATION OF JOSEPH PETERSEN IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
ON FAIR USE AND LACK OF INFRINGEMENT
UNDER SECTION 106 OF THE COPYRIGHT ACT

I, Joseph Petersen, make the following declaration:
1.

I am a member of the Bar of this Court and a partner at the law firm of Kilpatrick

Townsend & Stockton LLP, attorneys for the Defendants in the above-captioned action (the

A-751
Case 1:11-cv-06351-HB Document 111

Filed 06/29/12 Page 2 of 5

“Libraries”). I make this Declaration, based on my own personal knowledge, in support of the
Libraries’ motion for summary judgment on fair use.
2.

Attached hereto as Exhibit A is a true and correct copy of relevant pages of the

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.
3.

Attached hereto as Exhibit B is a true and correct copy of relevant pages of the

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.
4.

Attached hereto as Exhibit C is a true and correct copy of relevant pages of the

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.
5.

Attached hereto as Exhibit D is a true and correct copy of relevant pages of the

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.
6.

Attached hereto as Exhibit E is a true and correct copy of relevant pages of the

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.
7.

Attached hereto as Exhibit F is a true and correct copy of relevant pages of the

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-752
Case 1:11-cv-06351-HB Document 111

8.

Filed 06/29/12 Page 3 of 5

Attached hereto as Exhibit G is a true and correct copy of relevant pages of the

Objections and Responses of Plaintiff Pat Cummings to Defendants’ Second Set of
Interrogatories and Requests for the Production of Documents, dated April 10, 2012.
9.

Attached hereto as Exhibit H is a true and correct copy of relevant pages of the

Objections and Responses of Plaintiff Erik Grundström to Defendants’ Second Set of
Interrogatories and Requests for the Production of Documents, dated April 10, 2012.
10.

Attached hereto as Exhibit I is a true and correct copy of relevant pages of the

Objections and Responses of Plaintiff Angelo Loukakis to Defendants’ Second Set of
Interrogatories and Requests for the Production of Documents, dated April 10, 2012.
11.

Attached hereto as Exhibit J is a true and correct copy of relevant pages of the

Objections and Responses of Plaintiff Helge Rønning to Defendants’ Second Set of
Interrogatories and Requests for the Production of Documents, dated April 10, 2012.
12.

Attached hereto as Exhibit K is a true and correct copy of relevant pages of the

Objections and Responses of Plaintiff Roxana Robinson to Defendants’ Second Set of
Interrogatories and Requests for the Production of Documents, dated March 28, 2012.
13.

Attached hereto as Exhibit L is a true and correct copy of relevant pages of the

Objections and Responses of Plaintiff André Roy to Defendants’ Second Set of Interrogatories
and Requests for the Production of Documents, dated April 10, 2012.
14.

Attached hereto as Exhibit M is a true and correct copy of relevant pages of the

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-753
Case 1:11-cv-06351-HB Document 111

15.

Filed 06/29/12 Page 4 of 5

Attached hereto as Exhibit N is a true and correct copy of relevant pages of the

Objections and Responses of Plaintiff James Shapiro to Defendants’ Second Set of
Interrogatories and Requests for the Production of Documents, dated April 10, 2012.
16.

Attached hereto as Exhibit O is a true and correct copy of relevant pages of the

Objections and Responses of Plaintiff Daniele Simpson to Defendants’ Second Set of
Interrogatories and Requests for the Production of Documents, dated April 10, 2012.
17.

Attached hereto as Exhibit P is a true and correct copy of relevant pages of the

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.
18.

Attached hereto as Exhibit Q is a true and correct copy of relevant pages of the

Objections and Responses of Plaintiff Fay Weldon to Defendants’ Second Set of Interrogatories
and Requests for the Production of Documents, dated April 10, 2012.
19.

Attached hereto as Exhibit R is a true and correct copy of relevant pages of the

Objections and Responses of Plaintiff UNEQ to Defendants’ Second Set of Interrogatories and
Requests for the Production of Documents, dated April 20, 2012.
20.

Attached hereto as Exhibit S is a true and correct copy of relevant pages of the

Objections and Responses of Plaintiff SFF to Defendants’ Second Set of Interrogatories and
Requests for the Production of Documents, dated April 20, 2012.
21.

Attached hereto as Exhibit T is a true and correct copy of relevant pages of the

Objections and Responses of Plaintiff NFFO to Defendants’ Second Set of Interrogatories and
Requests for the Production of Documents, dated April 20, 2012.
22.

Attached hereto as Exhibit U is a true and correct copy of relevant pages of the

transcript of the May 22, 2012 deposition of Pat Cummings.

A-754
Case 1:11-cv-06351-HB Document 111

23.

Filed 06/29/12 Page 5 of 5

Attached hereto as Exhibit V is a true and correct copy of the transcript of the

May 29,2012 deposition of Helge R0nning.
24.

Attached hereto as Exhibit W is a true and correct copy of an article by Peter

Leonard and Timothy R. Tangherlini entitled "Trawling in the Sea of the Great Unread: SubCorpus Topic Modeling and Humanities Research."
I declare under penalty of perjury of the laws of th
true and correct.
Dated: June 29, 2012
Jose

..,,,•.•...,,,...J,hat the foregoing is

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EXHIBIT A

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Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF THE AUTHORS GUILD,
INC. TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND
REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff The Authors Guild, Inc. (“Plaintiff”) hereby submits, pursuant to Rules 26, 34
and 36 of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for
the United States District Court for the Southern District of New York (the “Local Rules”),
Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories and Requests
for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a
General Objection for emphasis or some other reason. The failure to include any General

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ESCAPE THE NIGHT
FAIR WARNING
MURDER BY AN ARISTOCRAT
Works by Sax Rohmer:
THE TRAIL OF FU MANCHU
PRESIDENT FU MANCHU
Plaintiff will conduct a reasonable search and produce documents, if any, concerning
royalties generated or expected to be generated from distribution of these works in digital format.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity any alleged harm you and/or your relevant
member have suffered or will suffer arising solely by virtue of each of the following, and
identify all documents related to the same: a) the inclusion of the work in Defendants’ digital
archives; b) the availability of a digital version of the work for use purely in connection with
non-consumptive research; c) the availability of a digital version of the work for use purely in
connection with full-text searching; d) the availability of a digital version of the work for use by
the blind or others with disabilities that restrict their use of standard printed works.
Plaintiff objects to this Interrogatory on the ground that it is impossible to predict, and
therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of Defendants’
various unauthorized uses of Plaintiff’s works. In addition, to the extent this Interrogatory is
being used in connection with Defendants’ fair use defense under 17 U.S.C. § 107, the correct
standard, to the extent it is relevant, is “the effect of the use upon the potential market for or
value of the copyrighted work.” Plaintiff further objects that the phrase “solely by virtue of . . .
the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and “dark archiving” of a digital version the works on Schedule A to the
HathiTrust Digital Library but without making such works available to others to view, print or

9

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Filed 06/29/12 Page 4 of 245

download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such works available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such works available to others to view, print or download;
or (d) the availability of a digital version of the work for use by the blind or others with
disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted works, Plaintiff identifies the following:
x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for inclusion in a digital archive for preservation
purposes;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with non-consumptive
research;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with full-text
searching;

x

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works due to the availability of such works for others to

10

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Filed 06/29/12 Page 5 of 245

view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such works as public domain or “orphan works”;
x

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

x

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

x

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of such work when stored,
distributed, sold and/or licensed in any format, including without limitation hardback, paperback,
and electronic and digital formats, and identify documents sufficient to substantiate the use of
such controls, by a) you; b) any publisher; c) any printer; d) any distributor; e) any warehouse; f)
any wholesaler; g) any retailer; h) any Internet host, website and/or online retailer in connection
with digital or electronic formats; and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiff’s works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiff’s claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s works without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Moreover, Plaintiff objects that this Interrogatory on the ground that most of the
information sought by this Interrogatory is in the possession or custody or third parties over
whom Plaintiff does not exercise control.
INTERROGATORY NO. 7: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls, used to prevent and/or detect unauthorized access to printed or electronic
works, that you have requested in any licensing, publishing, distribution and/or other agreements
related to such work, and identify all documents related to such requests.

11

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hardback, paperback, and electronic and digital formats by any person or entity, including
without limitation you and any publisher; printer; distributor; warehouse; wholesaler; retailer;
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or any purchaser of such work.
RESPONSE: Plaintiff objects to this Request on the same grounds as set forth in
response to Interrogatory No. 6.
REQUEST NO. 7: All documents concerning the existence or non-existence of a specific
market or potential market for the digitization and further reproduction, distribution and/or
display of printed works for the purposes of a) electronic archiving; b) non-consumptive
research; c) full-text searching; and/or d) use by the blind or others with disabilities that restrict
their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and “dark archiving” of a digital version the

14

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Filed 06/29/12 Page 7 of 245

works on Schedule A to a “digital archive” in which such works are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with nonconsumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with full-text
searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work by the blind or others with
disabilities that restrict their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other

15

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earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.

16

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Filed 06/29/12 Page 9 of 245

Dated: New York, New York
April 20 2012
__,
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

17

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Filed 06/29/12 Page 10 of 245

VERIFICATION
I, .Tan Conslantim; Gent:ral COllnsel for Plaintiff The Authors Guild , Inc., have read the

foregoing Responses to Interrogatory Numbers I through 7 and know their contents. The
responses provided therein arc true to my knowledge;, and as to those matters stated upon
information and belief, I believe them to be true. I verify under penalty of perjury under the laws

20
ofthe United States of America that the foregoing is true and correct. Executed on April_.
2012.

fKKS; 453H 4. v)

19894.300

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EXHIBIT B

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Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF THE AUTHORS LEAGUE
FUND, INC. TO DEFENDANTS’ SECOND SET OF INTERROGATORIES
AND REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff The Authors League Fund, Inc. (“Plaintiff”) hereby submits, pursuant to Rules
26, 34 and 36 of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules
for the United States District Court for the Southern District of New York (the “Local Rules”),
Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories and Requests
for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a
General Objection for emphasis or some other reason. The failure to include any General

A-767
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 13 of 245

distributed in electronic format and the publisher of any such works. Moreover, Plaintiff objects
that the request to identify “the specific digital, electronic or other machine-readable format” is
vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that none of the works on Schedule A have been distributed pursuant to
Plaintiff’s authorization, in digital, electronic or other machine-readable format within the last
ten years, but notes that recent inquiries and efforts have made to distribute the works on
Schedule in electronic format. Plaintiff will conduct a reasonable search and produce
documents, if any, concerning such inquiries and efforts.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity any alleged harm you and/or your relevant
member have suffered or will suffer arising solely by virtue of each of the following, and
identify all documents related to the same: a) the inclusion of the work in Defendants’ digital
archives; b) the availability of a digital version of the work for use purely in connection with
non-consumptive research; c) the availability of a digital version of the work for use purely in
connection with full-text searching; d) the availability of a digital version of the work for use by
the blind or others with disabilities that restrict their use of standard printed works.
Plaintiff objects to this Interrogatory on the ground that it is impossible to predict, and
therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of Defendants’
various unauthorized uses of Plaintiff’s works. In addition, to the extent this Interrogatory is
being used in connection with Defendants’ fair use defense under 17 U.S.C. § 107, the correct
standard, to the extent it is relevant, is “the effect of the use upon the potential market for or
value of the copyrighted work.” Plaintiff further objects that the phrase “solely by virtue of . . .
the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)

8

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Filed 06/29/12 Page 14 of 245

Defendants’ uploading and “dark archiving” of a digital version the works on Schedule A to the
HathiTrust Digital Library but without making such works available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such works available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such works available to others to view, print or download;
or (d) the availability of a digital version of the work for use by the blind or others with
disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted works, Plaintiff identifies the following:
x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for inclusion in a digital archive for preservation
purposes;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with non-consumptive
research;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with full-text
searching;

x

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

9

A-769
Case 1:11-cv-06351-HB Document 111-1

x

Filed 06/29/12 Page 15 of 245

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works due to the availability of such works for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such works as public domain or “orphan works”;

x

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

x

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

x

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of such work when stored,
distributed, sold and/or licensed in any format, including without limitation hardback, paperback,
and electronic and digital formats, and identify documents sufficient to substantiate the use of
such controls, by a) you; b) any publisher; c) any printer; d) any distributor; e) any warehouse; f)
any wholesaler; g) any retailer; h) any Internet host, website and/or online retailer in connection
with digital or electronic formats; and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiff’s works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiff’s claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s works without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Moreover, Plaintiff objects that this Interrogatory on the ground that most of the
information sought by this Interrogatory is in the possession or custody or third parties over
whom Plaintiff does not exercise control.

10

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Filed 06/29/12 Page 16 of 245

RESPONSE: Plaintiff objects to this Request on the same grounds as set forth in
response to Interrogatory No. 7.
REQUEST NO. 6: All documents concerning any physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of any work listed on Schedule A
when stored, distributed, sold and/or licensed in any format, including without limitation
hardback, paperback, and electronic and digital formats by any person or entity, including
without limitation you and any publisher; printer; distributor; warehouse; wholesaler; retailer;
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or any purchaser of such work.
RESPONSE: Plaintiff objects to this Request on the same grounds as set forth in
response to Interrogatory No. 6.
REQUEST NO. 7: All documents concerning the existence or non-existence of a specific
market or potential market for the digitization and further reproduction, distribution and/or
display of printed works for the purposes of a) electronic archiving; b) non-consumptive
research; c) full-text searching; and/or d) use by the blind or others with disabilities that restrict
their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without

13

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Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 17 of 245

waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and “dark archiving” of a digital version the
works on Schedule A to a “digital archive” in which such works are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with nonconsumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with full-text
searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work by the blind or others with
disabilities that restrict their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121

14

A-772
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 18 of 245

specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.

15

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Filed 06/29/12 Page 19 of 245

Dated: New York, New York
April 20, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

16

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Filed 06/29/12 Page 20 of 245

VERI FICATION
I, Isabd How!!, Oirector of Plaintiff The Authors League Fund, Inc., have read the
foregoing Responses to interrogatory Numbers I through 7 and know their comenlS. The

responses provided therein arc: true: to my knowledge. and as to those matters stated upon
infonnation and bel ief, 1 be lieve them to be true. I vt!rify under pt:nall y of re1
jury under the la....'5

20
of the United States of America that the fo regoing is true and correct. Executed on April _ ,
2012.

~~
Isabel Howe

f KKS: 4~390!!.~1

19894.3(()

A-775
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 21 of 245

EXHIBIT C

A-776
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Filed 06/29/12 Page 22 of 245

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF THE AUSTRALIAN SOCIETY OF
AUTHORS TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND
REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff The Australian Society of Authors Limited (“Plaintiff”) hereby submits,
pursuant to Rules 26, 34 and 36 of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3
of the Local Rules for the United States District Court for the Southern District of New York (the
“Local Rules”), Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories
and Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a
General Objection for emphasis or some other reason. The failure to include any General

A-777
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 23 of 245

format within the last ten years and, if so, identify for each such work a) the specific digital,
electronic or other machine-readable format(s) in which it was distributed; b) the number of
copies of the work distributed in such format(s); c) the publisher(s) of the work in such
format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Plaintiff objects that this Interrogatory on the ground that it is duplicative,
as Plaintiff already identified whether any of Plaintiff’s works on Schedule A have been
distributed in electronic format and the publisher of any such works. Moreover, Plaintiff objects
that the request to identify “the specific digital, electronic or other machine-readable format” is
vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that none of the works on Schedule A have been distributed, pursuant to
Plaintiff’s authorization, in digital, electronic or other machine-readable format at any time since
2001.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity any alleged harm you and/or your relevant
member have suffered or will suffer arising solely by virtue of each of the following, and
identify all documents related to the same: a) the inclusion of the work in Defendants’ digital
archives; b) the availability of a digital version of the work for use purely in connection with
non-consumptive research; c) the availability of a digital version of the work for use purely in
connection with full-text searching; d) the availability of a digital version of the work for use by
the blind or others with disabilities that restrict their use of standard printed works.
Plaintiff objects to this Interrogatory on the ground that it is impossible to predict, and
therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of Defendants’
various unauthorized uses of Plaintiff’s works. In addition, to the extent this Interrogatory is
being used in connection with Defendants’ fair use defense under 17 U.S.C. § 107, the correct
standard, to the extent it is relevant, is “the effect of the use upon the potential market for or
value of the copyrighted work.” Plaintiff further objects that the phrase “solely by virtue of . . .
the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.

8

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Filed 06/29/12 Page 24 of 245

Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and “dark archiving” of a digital version the works on Schedule A to the
HathiTrust Digital Library but without making such works available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such works available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such works available to others to view, print or download;
or (d) the availability of a digital version of the work for use by the blind or others with
disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted works, Plaintiff identifies the following:
x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for inclusion in a digital archive for preservation
purposes;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with non-consumptive
research;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with full-text
searching;

9

A-779
Case 1:11-cv-06351-HB Document 111-1

x

Filed 06/29/12 Page 25 of 245

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works due to the availability of such works for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such works as public domain or “orphan works”;

x

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

x

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

x

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of such work when stored,
distributed, sold and/or licensed in any format, including without limitation hardback, paperback,
and electronic and digital formats, and identify documents sufficient to substantiate the use of
such controls, by a) you; b) any publisher; c) any printer; d) any distributor; e) any warehouse; f)
any wholesaler; g) any retailer; h) any Internet host, website and/or online retailer in connection
with digital or electronic formats; and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiff’s works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiff’s claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s works without

10

A-780
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 26 of 245

Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and “dark archiving” of a digital version the
works on Schedule A to a “digital archive” in which such works are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with nonconsumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with full-text
searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or

14

A-781
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 27 of 245

expected to be generated in whole or in part by the use of such work by the blind or others with
disabilities that restrict their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.

15

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Filed 06/29/12 Page 28 of 245

RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 20, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

16

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Filed 06/29/12 Page 29 of 245

VERIFICATION
I, Angelo Loukakis, Executive Director for Plaintiff The Australian Society of Authors
Limited, have read the foregoing Responses to Interrogatory Numbers 1 through 7 and know
their contents. The responses provided therein are true to my knowledge, and as to those matters
stated upon information and belief, I believe them to be true. I verify under penalty of perjury
under the laws of the United States of America that the foregoing is true and correct. Executed
on April 20, 2012.

______________________________
Angelo Loukakis

FKKS: 453900.v1

19894.300

A-784
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 30 of 245

EXHIBIT D

A-785
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Filed 06/29/12 Page 31 of 245

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF THE AUTHORS’ LICENSING AND
COLLECTING SOCIETY TO DEFENDANTS’ SECOND SET OF INTERROGATORIES
AND REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff The Authors’ Licensing and Collecting Society Ltd. (“Plaintiff”) hereby submits,
pursuant to Rules 26, 34 and 36 of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3
of the Local Rules for the United States District Court for the Southern District of New York (the
“Local Rules”), Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories
and Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a
General Objection for emphasis or some other reason. The failure to include any General

A-786
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Filed 06/29/12 Page 32 of 245

sought by this request is likely to be in the possession or custody of third parties over whom
Plaintiff does not exercise control.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff will conduct a reasonable search and produce documents, if any, responsive to this
request relating to the works listed on Schedule A.
INTERROGATORY NO. 4: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, indicate whether that work has been distributed, pursuant to your
and/or that relevant member’s authorization, in digital, electronic or other machine-readable
format within the last ten years and, if so, identify for each such work a) the specific digital,
electronic or other machine-readable format(s) in which it was distributed; b) the number of
copies of the work distributed in such format(s); c) the publisher(s) of the work in such
format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Plaintiff objects that this Interrogatory on the ground that it is duplicative,
as Plaintiff already identified whether any of Plaintiff’s works on Schedule A have been
distributed in electronic format and the publisher of any such works. Moreover, Plaintiff objects
that the request to identify “the specific digital, electronic or other machine-readable format” is
vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that neither work on Schedule A has been distributed, pursuant to the relevant
member’s authorization, in digital, electronic or other machine-readable format at any time since
2001.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity any alleged harm you and/or your relevant
member have suffered or will suffer arising solely by virtue of each of the following, and
identify all documents related to the same: a) the inclusion of the work in Defendants’ digital
archives; b) the availability of a digital version of the work for use purely in connection with
non-consumptive research; c) the availability of a digital version of the work for use purely in
connection with full-text searching; d) the availability of a digital version of the work for use by
the blind or others with disabilities that restrict their use of standard printed works.

7

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Filed 06/29/12 Page 33 of 245

Plaintiff objects to this Interrogatory on the ground that it is impossible to predict, and
therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of Defendants’
various unauthorized uses of Plaintiff’s works. In addition, to the extent this Interrogatory is
being used in connection with Defendants’ fair use defense under 17 U.S.C. § 107, the correct
standard, to the extent it is relevant, is “the effect of the use upon the potential market for or
value of the copyrighted work.” Plaintiff further objects that the phrase “solely by virtue of . . .
the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and “dark archiving” of a digital version the works on Schedule A to the
HathiTrust Digital Library but without making such works available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such works available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such works available to others to view, print or download;
or (d) the availability of a digital version of the work for use by the blind or others with
disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted works, Plaintiff identifies the following:
x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for inclusion in a digital archive for preservation
purposes;

8

A-788
Case 1:11-cv-06351-HB Document 111-1

x

Filed 06/29/12 Page 34 of 245

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with non-consumptive
research;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with full-text
searching;

x

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works due to the availability of such works for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such works as public domain or “orphan works”;

x

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

x

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

x

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of such work when stored,
distributed, sold and/or licensed in any format, including without limitation hardback, paperback,
and electronic and digital formats, and identify documents sufficient to substantiate the use of

9

A-789
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 35 of 245

interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and “dark archiving” of a digital version the
works on Schedule A to a “digital archive” in which such works are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with nonconsumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with full-text
searching.

13

A-790
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 36 of 245

RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work by the blind or others with
disabilities that restrict their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.

14

A-791
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 37 of 245

RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 20, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

15

A-792
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 38 of 245

I. Owen Atkinson, Chief Exeeutive for Plaintiff the Authors' LieensinB and Colleclillg
Soeiety Ltd., have read the foregoing Responses to Interrogatory Numbers 1 through 7 al ld know
their contents. The responses provided therein are true to my knowledge, and as to lbuse matters

stated upon infonnation <lnd belief, I believe them to be true. I verify undel' pt::llalty ofpcrjury
under the laws of the United States of America that the foregoine is. true and cone(;1. Executed
on Apri l _ . 2012.
20

Owen Atkinsun

fKKS:

~ U902.vl

19594300

A-793
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 39 of 245

EXHIBIT E

A-794
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 40 of 245

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF THE WRITERS’ UNION OF
CANADA TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND
REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff The Writers’ Union of Canada (“Plaintiff”) hereby submits, pursuant to Rules
26, 34 and 36 of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules
for the United States District Court for the Southern District of New York (the “Local Rules”),
Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories and Requests
for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a
General Objection for emphasis or some other reason. The failure to include any General

A-795
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Filed 06/29/12 Page 41 of 245

format within the last ten years and, if so, identify for each such work a) the specific digital,
electronic or other machine-readable format(s) in which it was distributed; b) the number of
copies of the work distributed in such format(s); c) the publisher(s) of the work in such
format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Plaintiff objects that this Interrogatory on the ground that it is duplicative,
as Plaintiff already identified whether any of Plaintiff’s works on Schedule A have been
distributed in electronic format and the publisher of any such works. Moreover, Plaintiff objects
that the request to identify “the specific digital, electronic or other machine-readable format” is
vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that portions of FOLKLORE OF CANADA have been distributed, pursuant to
Plaintiff’s authorization, in digital, electronic or other machine-readable format at any time since
2001. Plaintiff will conduct a reasonable search and produce documents relating to the
distribution of this work in digital format.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity any alleged harm you and/or your relevant
member have suffered or will suffer arising solely by virtue of each of the following, and
identify all documents related to the same: a) the inclusion of the work in Defendants’ digital
archives; b) the availability of a digital version of the work for use purely in connection with
non-consumptive research; c) the availability of a digital version of the work for use purely in
connection with full-text searching; d) the availability of a digital version of the work for use by
the blind or others with disabilities that restrict their use of standard printed works.
Plaintiff objects to this Interrogatory on the ground that it is impossible to predict, and
therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of Defendants’
various unauthorized uses of Plaintiff’s works. In addition, to the extent this Interrogatory is
being used in connection with Defendants’ fair use defense under 17 U.S.C. § 107, the correct
standard, to the extent it is relevant, is “the effect of the use upon the potential market for or

8

A-796
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Filed 06/29/12 Page 42 of 245

value of the copyrighted work.” Plaintiff further objects that the phrase “solely by virtue of . . .
the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and “dark archiving” of a digital version the works on Schedule A to the
HathiTrust Digital Library but without making such works available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such works available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such works available to others to view, print or download;
or (d) the availability of a digital version of the work for use by the blind or others with
disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted works, Plaintiff identifies the following:
x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for inclusion in a digital archive for preservation
purposes;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with non-consumptive
research;

9

A-797
Case 1:11-cv-06351-HB Document 111-1

x

Filed 06/29/12 Page 43 of 245

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with full-text
searching;

x

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works due to the availability of such works for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such works as public domain or “orphan works”;

x

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

x

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

x

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of such work when stored,
distributed, sold and/or licensed in any format, including without limitation hardback, paperback,
and electronic and digital formats, and identify documents sufficient to substantiate the use of
such controls, by a) you; b) any publisher; c) any printer; d) any distributor; e) any warehouse; f)
any wholesaler; g) any retailer; h) any Internet host, website and/or online retailer in connection
with digital or electronic formats; and/or i) any purchaser of such work.

10

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objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and “dark archiving” of a digital version the
works on Schedule A to a “digital archive” in which such works are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with nonconsumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with full-text
searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.

14

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REQUEST NO. 11: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work by the blind or others with
disabilities that restrict their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s works in the United States “for use by blind
or other persons with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.

15

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Filed 06/29/12 Page 46 of 245

REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 20, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

16

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VERIFICATION
I, Kelly Duffin, Executive Director for Plaintiff The Writers’ Union of Canada, have read
the foregoing Responses to Interrogatory Numbers 1 through 7 and know their contents. The
responses provided therein are true to my knowledge, and as to those matters stated upon
information and belief, I believe them to be true. I verify under penalty of perjury under the laws
of the United States of America that the foregoing is true and correct. Executed on April 20,
2012.

______________________________
Kelly Duffin

FKKS: 453896.v1

19894.300

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EXHIBIT F

A-803
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Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF TROND ANDREASSEN
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Trond Andreassen (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36
of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the
United States District Court for the Southern District of New York (the “Local Rules”),
Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories and Second Set
of Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

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

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INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §
107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the
HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or
download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.

7

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With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

x

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

x

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

x

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

8

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x

Filed 06/29/12 Page 52 of 245

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the
information sought by this Interrogatory is in the possession or custody or third parties over
whom Plaintiff does not exercise control.
INTERROGATORY NO. 7: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls, used to prevent
and/or detect unauthorized access to printed or electronic works, that you have requested in any
licensing, publishing distribution and/or other agreements related to such work, and identify all
documents related to such requests.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the

9

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documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the use of such work in connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work in connection with full-text searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.

12

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REQUEST NO. 11: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work by the blind or others with disabilities that restrict their
use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.

13

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REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 10, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

14

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VERIFICATION
I, Trond Andreassen, have read the foregoing Responses to Interrogatory Numbers 1
through 7 and know their contents. The responses provided therein are true to my knowledge,
and as to those matters stated upon information and belief, I believe them to be true. I verify
under penalty of perjury under the laws of the United States of America that the foregoing is true
and correct. Executed on April 8, 2012.

Trond Andreassen

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EXHIBIT G

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Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF PAT CUMMINGS
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Pat Cummings (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36 of
the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the United
States District Court for the Southern District of New York (the “Local Rules”), Plaintiff’s
objections and responses to Defendants’ Second Set of Interrogatories and Second Set of
Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

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

A-813
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 59 of 245

format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Plaintiff objects that this Interrogatory on the ground that it is duplicative,
as Plaintiff already identified whether any of Plaintiff’s works on Schedule A have been
distributed in electronic format and the publisher of any such works. Moreover, Plaintiff objects
that the request to identify “the specific digital, electronic or other machine-readable format” is
vague and ambiguous. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff identifies the following as work(s) on Schedule A that have been
distributed, pursuant to Plaintiff’s authorization, in digital, electronic or other machine-readable
format at any time since 2001:
JIMMY LEE DID IT
Plaintiff will conduct a reasonable search and produce documents, if any, concerning
royalties generated from distribution of the work(s) in electronic format.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §
107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.

7

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Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the
HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or
download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

x

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other

8

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technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;
x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

x

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

x

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

x

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the

9

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REQUEST NO. 6: All documents concerning any physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of any work listed on Schedule A
when stored, distributed, sold and/or licensed in any format, including without limitation
hardback, paperback,, and electronic and digital formats by any person or entity, including
without limitation you and any publisher; printer; distributor; warehouse, wholesaler, retailer,
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or any purchaser of such work.
RESPONSE: Plaintiff objects to this Request on the same grounds as set forth in
response to Interrogatory No. 6.
REQUEST NO. 7: All documents concerning the existence or non-existence of a specific
market or potential market for the digitization and further reproduction, distribution and/or
display of printed works for the purpose of a) electronic archiving; b) non-consumptive research;
c) full-text searching; and/or d) use by the blind or others with disabilities that restrict their use
of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be

12

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generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the use of such work in connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work in connection with full-text searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work by the blind or others with disabilities that restrict their
use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).

13

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REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 10, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

14

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VERIFICATION
I, Pat Cummings, have read the foregoing Responses to Interrogatory Numbers 1 through
7 and know their contents. The responses provided therein are true to my knowledge, and as to
those matters stated upon information and belief, I believe them to be true. I verify under
penalty of perjury under the laws of the United States of America that the foregoing is true and
correct. Executed on April 5, 2012.

______________________________
Pat Cummings

FKKS: 453772.v1

19894.300

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EXHIBIT H

A-821
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Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF ERIK GRUNDSTRÖM
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Erik Grundström (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36
of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the
United States District Court for the Southern District of New York (the “Local Rules”),
Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories and Second Set
of Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

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

A-822
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 68 of 245

INTERROGATORY NO. 4: For each work, if any, listed on Schedule A, indicate whether that
work has been distributed, pursuant to your authorization, in digital, electronic or other machinereadable format at any time since 2001 and, if so, identify for each such work a) the specific
digital, electronic or other machine-readable format(s) in which it was distributed; b) the number
of copies of the work distributed in such format(s); c) the publisher(s) of the work in such
format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Plaintiff objects that this Interrogatory on the ground that it is duplicative,
as Plaintiff already identified whether any of Plaintiff’s works on Schedule A have been
distributed in electronic format and the publisher of any such works. Moreover, Plaintiff objects
that the request to identify “the specific digital, electronic or other machine-readable format” is
vague and ambiguous. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff identifies no works on Schedule A that have been distributed, pursuant to
Plaintiff’s authorization, in digital, electronic or other machine-readable format at any time since
2001..
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §
107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.

7

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Filed 06/29/12 Page 69 of 245

Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the
HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or
download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

x

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other

8

A-824
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 70 of 245

technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;
x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

x

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

x

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

x

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the

9

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Filed 06/29/12 Page 71 of 245

REQUEST NO. 6: All documents concerning any physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of any work listed on Schedule A
when stored, distributed, sold and/or licensed in any format, including without limitation
hardback, paperback,, and electronic and digital formats by any person or entity, including
without limitation you and any publisher; printer; distributor; warehouse, wholesaler, retailer,
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or any purchaser of such work.
RESPONSE: Plaintiff objects to this Request on the same grounds as set forth in
response to Interrogatory No. 6.
REQUEST NO. 7: All documents concerning the existence or non-existence of a specific
market or potential market for the digitization and further reproduction, distribution and/or
display of printed works for the purpose of a) electronic archiving; b) non-consumptive research;
c) full-text searching; and/or d) use by the blind or others with disabilities that restrict their use
of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be

12

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Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 72 of 245

generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the use of such work in connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work in connection with full-text searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work by the blind or others with disabilities that restrict their
use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).

13

A-827
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 73 of 245

REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 10, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

14

A-828
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 74 of 245

VERlFICATION
I, Erik Grundstr5m, have read the foregoing Responses to Interrogatory Numbers 1
tbrough 7 and know their contents. The responses provided therein are true to my knowledge,
and as to those mairers stated upon inform.tion .nd belief, I believe them to be true. J verilY
under penalty of perjury under the laws of the United States of America that the foregoing is tmc
and correct. Executed on April

It:

'7

20 I 2.

~/~~~~~,;~-~~
Erik C", ndstrom

fKKS: 4533S2.vl

193:94,300

A-829
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 75 of 245

EXHIBIT I

A-830
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 76 of 245

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF ANGELO LOUKAKIS
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Angelo Loukakis (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36
of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the
United States District Court for the Southern District of New York (the “Local Rules”),
Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories and Second Set
of Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

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

A-831
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 77 of 245

INTERROGATORY NO. 4: For each work, if any, listed on Schedule A, indicate whether that
work has been distributed, pursuant to your authorization, in digital, electronic or other machinereadable format at any time since 2001 and, if so, identify for each such work a) the specific
digital, electronic or other machine-readable format(s) in which it was distributed; b) the number
of copies of the work distributed in such format(s); c) the publisher(s) of the work in such
format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Plaintiff objects that this Interrogatory on the ground that it is duplicative,
as Plaintiff already identified whether any of Plaintiff’s works on Schedule A have been
distributed in electronic format and the publisher of any such works. Moreover, Plaintiff objects
that the request to identify “the specific digital, electronic or other machine-readable format” is
vague and ambiguous. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff identifies no works on Schedule A that have been distributed, pursuant to
Plaintiff’s authorization, in digital, electronic or other machine-readable format at any time since
2001..
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §
107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.

7

A-832
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 78 of 245

Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the
HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or
download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

x

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other

8

A-833
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 79 of 245

technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;
x

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

x

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

x

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

x

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the

9

A-834
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 80 of 245

REQUEST NO. 6: All documents concerning any physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of any work listed on Schedule A
when stored, distributed, sold and/or licensed in any format, including without limitation
hardback, paperback,, and electronic and digital formats by any person or entity, including
without limitation you and any publisher; printer; distributor; warehouse, wholesaler, retailer,
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or any purchaser of such work.
RESPONSE: Plaintiff objects to this Request on the same grounds as set forth in
response to Interrogatory No. 6.
REQUEST NO. 7: All documents concerning the existence or non-existence of a specific
market or potential market for the digitization and further reproduction, distribution and/or
display of printed works for the purpose of a) electronic archiving; b) non-consumptive research;
c) full-text searching; and/or d) use by the blind or others with disabilities that restrict their use
of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be

12

A-835
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 81 of 245

generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the use of such work in connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work in connection with full-text searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work by the blind or others with disabilities that restrict their
use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).

13

A-836
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REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 10, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

14

A-837
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 83 of 245

VERIFICATION
I, Angelo Loukakis, have read the foregoing Responses to Interrogatory Numbers 1
through 7 and know their contents. The responses provided therein are true to my knowledge,
and as to those matters stated upon information and belief, I believe them to be true. I verify
under penalty of perjury under the laws of the United States of America that the foregoing is true
and correct. Executed on April 9, 2012.

______________________________
Angelo Loukakis

FKKS: 453777.v1

19894.300