Authors Guild, Inc. v. Hathitrust

Filing 223

DEFERRED APPENDIX, volume 4 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.[978665] [12-4547]

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

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

JOINT DEFERRED APPENDIX
Volume 4 of 5 (Pages A-838 to A-1118)
EDWARD H. ROSENTHAL
JEREMY S. GOLDMAN
ANNA KADYSHEVICH
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
[phone]
Attorneys for Plaintiffs-Appellants
(For Continuation of Appearances See Inside Cover)

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

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

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

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

A-1

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

A-66

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

A-98

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

A-123

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

A-127

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

A-130

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

A-136

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

A-158

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

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

A-160

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

A-165

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

A-167

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

A-169

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

A-171

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

A-180

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

A-194

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

A-201

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

A-213

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

A-220

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

A-223

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

A-225

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

A-227

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

A-232

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

A-237

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

A-242

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

A-247

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

A-251

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

A-266

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

A-269

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

A-274

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

A-277

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

A-286

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

A-289

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

A-294

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

A-297

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

A-302

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

A-307

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

A-324

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

A-328

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

A-334

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

A-340

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

A-343

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

A-365

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

A-385

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

A-388

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

A-390

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

A-395

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

A-398

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

A-413

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

A-418

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

A-423

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

A-427

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

A-430

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

A-434

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

A-439

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

A-485

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

A-492

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

A-495

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

A-516

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

A-525

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

A-534

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

A-540

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

A-555

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

A-561

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

A-570

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

A-598

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

A-607

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

A-610

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

A-613

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

A-618

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

A-620

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

A-622

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

A-641

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

A-659

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

A-660

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

A-661

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

A-690

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

A-739

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

A-743

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

A-750

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

A-755

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

A-765

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

A-775

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

A-784

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

A-793

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

A-802

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

A-811

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

A-820

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

A-829

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

A-838

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

A-847

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

A-856

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

A-865

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

A-874

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

A-883

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

A-892

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

A-901

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

A-910

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

A-918

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

A-926

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

A-934

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

A-949

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

A-962

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

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

1

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

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

A-1096

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

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

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

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

A-838
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 84 of 245

EXHIBIT J

THIS PAGE INTENTIONALLY LEFT BLANK

A-839
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 85 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 HELGE RØNNING
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Helge Rønning (“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-840
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 86 of 245

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.
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

7

A-841
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 87 of 245

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
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;

8

A-842
Case 1:11-cv-06351-HB Document 111-1

x

Filed 06/29/12 Page 88 of 245

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
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

9

A-843
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 89 of 245

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

A-844
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 90 of 245

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

A-845
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 91 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 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-846
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 92 of 245

,
VERIFICATION
J, Helge R0nning, have read the foregoing Responses to Interrogatory Numbers I tbrough
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.

"

Helge R01ming

FK KS: 453761.v 1

19894.300

A-847
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 93 of 245

EXHIBIT K

A-848
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 94 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 ROXANA ROBINSON
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Roxana Robinson (“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-849
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 95 of 245

distributed, pursuant to Plaintiff’s authorization, in digital, electronic or other machine-readable
format at any time since 2001:
A PERFECT STRANGER
SWEETWATER
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.
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

7

A-850
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 96 of 245

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
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”;

8

A-851
Case 1:11-cv-06351-HB Document 111-1

x

Filed 06/29/12 Page 97 of 245

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
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

9

A-852
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 98 of 245

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
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.

12

A-853
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 99 of 245

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)).
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.

13

A-854
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 100 of 245

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
March 28, 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-855
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 101 of 245

VERIFICA nON
I, Roxana Robinson, 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 staled upnn information and helief, I helieve them to he true. I verify
under penalty of perj ury under the laws of the United States of America that the forego ing is true
and correct. Executed on March

~ 2012.

A-856
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 102 of 245

EXHIBIT L

A-857
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 103 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 ANDRÉ ROY
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff André Roy (“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-858
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 104 of 245

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

A-859
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 105 of 245

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

A-860
Case 1:11-cv-06351-HB Document 111-1

x

Filed 06/29/12 Page 106 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

A-861
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 107 of 245

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
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.

12

A-862
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 108 of 245

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)).
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.

13

A-863
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 109 of 245

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-864
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 110 of 245

VERiFICATIQ;j
I. AncirC Roy, M"C read the foregoing Responses to Interrogatory Numbers I through 7
and know their contents. The responses provided therein are true to my knowledge, and as to
those matters stated upon infonnation and belief. I believe them to be true. I verify under
penalty ofpcrjury under the laws of the United States of America that the foregoing is true and
oorrect Executed on Apri l lLt 20 12.

Andre Roy

A-865
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 111 of 245

EXHIBIT M

A-866
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 112 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 J.R. SALAMANCA
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff J.R. Salamanca (“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-867
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 113 of 245

concerning royalties generated from distribution of the work(s) in electronic format, but notes
that statements for works only recently released for sale may not yet be available.
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

7

A-868
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 114 of 245

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
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;

8

A-869
Case 1:11-cv-06351-HB Document 111-1

x

Filed 06/29/12 Page 115 of 245

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
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

9

A-870
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 116 of 245

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
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.

12

A-871
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 117 of 245

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)).
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.

13

A-872
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 118 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 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-873
041 05 / 2012 19: 21 FAX [phone]

STAPLES INC

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

Ij!] 002

Filed 06/29/12 Page 119 of 245

VERlFlCAJION
l, John White, literary agent for lR. SalalI\anca, have read the foregoing Responses

Intenogatory Numbers 1 through 7 and IalOW their contents. The responses provided there

:0
1 are

true tDmy knowlcdg~, and a~ to those matt.r5 stated upon infonnation and belief, I believe hem
to be true. I verify under penalty of perjury UDder the laws of the United States of America :hat
20
the f(,regoing is true and correct. Executed on April_, 2012.

ft:f:=. kJ($
Jo~

FKKS: 1537GR.vl

ite

1

~94 . ~(l(l

A-874
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 120 of 245

EXHIBIT N

A-875
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 121 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 JAMES SHAPIRO
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff James Shapiro (“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-876
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 122 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 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:
OBERAMMERGAU
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. §

7

A-877
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 123 of 245

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.
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;

8

A-878
Case 1:11-cv-06351-HB Document 111-1

x

Filed 06/29/12 Page 124 of 245

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

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

9

A-879
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 125 of 245

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.
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

13

A-880
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 126 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.

14

A-881
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 127 of 245

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

15

A-882
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 128 of 245

VERIFICATION

1, lame, Shapiro, have read the foregoing Responses to Interrogatory Numbers I through
7 and know their contents . The responses provided therein are true to my knowledge, and as to
those mattcrs stated upon intonnation and belief, I believe them to be true. [ verify under
penalty of perjury under the laws of the United States of America that the foregoing is true and
20
correct. Executed on April _ , 2012.

lro

A-883
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 129 of 245

EXHIBIT O

A-884
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 130 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 DANIELE SIMPSON
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Daniele Simpson (“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-885
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 131 of 245

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

A-886
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 132 of 245

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

A-887
Case 1:11-cv-06351-HB Document 111-1

x

Filed 06/29/12 Page 133 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

A-888
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 134 of 245

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

A-889
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 135 of 245

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

A-890
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 136 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 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-891
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 137 of 245

VERIFICATION
I, Daniele Simpson, have read the foregoing Responses to Interrogatory Numbers I
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 rrue. 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

,~~2012.

Daniele Simpson

FKKS: 453886.v[

19894.300

8,:[,

2,02-0,-dd~

A-892
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 138 of 245

EXHIBIT P

A-893
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 139 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 T.J. STILES
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff T.J. Stiles (“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-894
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 140 of 245

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

A-895
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 141 of 245

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

A-896
Case 1:11-cv-06351-HB Document 111-1

x

Filed 06/29/12 Page 142 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

A-897
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 143 of 245

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

A-898
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 144 of 245

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

A-899
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 145 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 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

I A-900 I
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 146 of 245

VERIFICATION
I, T.J. Stiles, 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
20
correct. Executed on April ___, 2012.

______________________________
_______________
_ _ _
__
__ _
T.J. Stiles
es

FKKS: 453776.v1

19894.300

A-901
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 147 of 245

EXHIBIT Q

A-902
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 148 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 FAY WELDON
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Fay Weldon (“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-903
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 149 of 245

AUTO DA FAY
BIG WOMEN
MANTRAPPED
NOTHING TO WEAR AND NOWHERE TO HIDE
PUFFBALL
REMEMBER ME
RHODE ISLAND BLUES
SHE MAY NOT LEAVE
SPLITTING
THE BULGARI CONNECTION
WATCHING ME, WATCHING YOU
WORST FEARS
Plaintiff will conduct a reasonable search and produce documents, if any, concerning
royalties generated from distribution of these works 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.
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

7

A-904
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 150 of 245

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

8

A-905
Case 1:11-cv-06351-HB Document 111-1

x

Filed 06/29/12 Page 151 of 245

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
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

9

A-906
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 152 of 245

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
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.

12

A-907
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 153 of 245

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)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.

13

A-908
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 154 of 245

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-909
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 155 of 245

VERIFICA nON
I, Fay Weldon, have read the foregoing Responscs to Interrogatory Numbers I through 7
and know tht:ir contents. The responses provided therein are true to my knowledge, and as to

those matters stated upon information and bc lief, 1 believe them to be true. I verify under
pena lty of perjury under rhe laws of the United States of America that the foregoing is true and
correct. Execu ted on ApriI _

. 2012 .

Fay

FKKS 453447 vJ

1
'
weldo~

k{~

1989-4 300

A-910
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 156 of 245

EXHIBIT R

A-911
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 157 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 UNEQ TO
DEFENDANTS’ SECOND SET OF INTERROGATORIES AND
REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Union des Écrivaines et des Écrivains Québécois (Quebec Union of Writers)
(“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

A-912
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 158 of 245

INTERROGATORY NO. 2: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify all author royalties and/or other income generated by such
work from 2001 to the present and itemized by source, as well as documents sufficient to
substantiate such royalties and/or income.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff
responds that no works were listed on Schedule A.
INTERROGATORY NO. 3: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify a) the number of hardback and/or paperback copies printed in
each year from 2001 to the present; b) the number of hardback and/or paperback copies
remaining in the inventory of any publisher or publisher’s agent at the end of each year from
2001 to the present; and c) the number of hardback and/or paperback copies remaining in the
inventory of any wholesaler or wholesaler’s agent at the end of each year from 2001 to the
present; d) the number of hardback and/or paperback copies remaining in the inventory of any
retailer or retailer’s agent at the end of each year from 2001 to the present; e) the number of
hardback and/or paperback copies returned by any retailer for each year from 2001 to the
present; and f) documents sufficient to substantiate such numbers.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff
responds that no works were 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: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
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.

6

A-913
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 159 of 245

RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
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: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
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.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
SPECIFIC OBJECTIONS AND RESPONSES TO DOCUMENT REQUEST
REQUEST NO. 1: For each work, if any, listed on Schedule A to your Objections and
Responses to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents (“Schedule A”), and for each work for which one or more of your members is a legal
or beneficial owner of a copyright or an exclusive right under a copyright that you claim has
been infringed by one or more of the Defendants (“Relevant Member Work”), documents
sufficient to identify whether that work is or has ever been part of any effort to reprint out-ofprint works in any form, including without limitation the Author’s Guild’s “BackinPrint.com”
service.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 1: All agreements with and/or related to iUniverse.com, or any other service
offering per-order printing in a hardback, paperback or electronic format, that involve any work
listed on Schedule A or any Relevant Member Work.

7

A-914
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 160 of 245

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. 4: 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: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 5: 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, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 6: 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, Plaintiff responds
that no works were listed on Schedule A.

9

A-915
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 161 of 245

REQUEST NO. 7: 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: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 8: 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. 9: 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. 10: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, Plaintiff responds
that no such documents have been identified.

10

A-916
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 162 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

11

A-917
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 163 of 245

VERIFICATION
I, Francis Farley-Chevrier, Directeur General for Plaintiff Union des Ecrivaines et des
Ecrivains Quebecois (Quebec Union of Writers), have read the foregoing Responses to
Interrogatory Numbers I through 7 and know their contents. The responses provided (herein are
true to my knowledge, and as to those matters stated upon infonnation and belief, I believe them
to be true. I verifY under penalty of peljury under the laws of the United States of America that
the foregoing is true and correct. Executed on April

f

, 2012 .

randsarleY:C
fi~d
¥riee

FKKS: 453895.vl

c:--

19894.300

8,:21

2102-01-dd~

A-918
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 164 of 245

EXHIBIT S

A-919
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 165 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 SFF TO
DEFENDANTS’ SECOND SET OF INTERROGATORIES AND
REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Sveriges Författarförbund (The Swedish Writers’ Union) (“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-920
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 166 of 245

INTERROGATORY NO. 2: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify all author royalties and/or other income generated by such
work from 2001 to the present and itemized by source, as well as documents sufficient to
substantiate such royalties and/or income.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff
responds that no works were listed on Schedule A.
INTERROGATORY NO. 3: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify a) the number of hardback and/or paperback copies printed in
each year from 2001 to the present; b) the number of hardback and/or paperback copies
remaining in the inventory of any publisher or publisher’s agent at the end of each year from
2001 to the present; and c) the number of hardback and/or paperback copies remaining in the
inventory of any wholesaler or wholesaler’s agent at the end of each year from 2001 to the
present; d) the number of hardback and/or paperback copies remaining in the inventory of any
retailer or retailer’s agent at the end of each year from 2001 to the present; e) the number of
hardback and/or paperback copies returned by any retailer for each year from 2001 to the
present; and f) documents sufficient to substantiate such numbers.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff
responds that no works were 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: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
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.

6

A-921
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 167 of 245

RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
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: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
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.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
SPECIFIC OBJECTIONS AND RESPONSES TO DOCUMENT REQUEST
REQUEST NO. 1: For each work, if any, listed on Schedule A to your Objections and
Responses to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents (“Schedule A”), and for each work for which one or more of your members is a legal
or beneficial owner of a copyright or an exclusive right under a copyright that you claim has
been infringed by one or more of the Defendants (“Relevant Member Work”), documents
sufficient to identify whether that work is or has ever been part of any effort to reprint out-ofprint works in any form, including without limitation the Author’s Guild’s “BackinPrint.com”
service.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 1: All agreements with and/or related to iUniverse.com, or any other service
offering per-order printing in a hardback, paperback or electronic format, that involve any work
listed on Schedule A or any Relevant Member Work.

7

A-922
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 168 of 245

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. 4: 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: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 5: 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, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 6: 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, Plaintiff responds
that no works were listed on Schedule A.

9

A-923
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 169 of 245

REQUEST NO. 7: 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: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 8: 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. 9: 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. 10: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, Plaintiff responds
that no such documents have been identified.

10

A-924
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 170 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

11

A-925
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 171 of 245

VER IFI CAT I O~

I. I horbjom Ostrom, General Counse l for Plaillliff Svcnges ForfaltarfOrbund (The
Swedish \\Triters' Union), have read the foregoing Responses to Interrogatory l\um bers 1
through 7 and know their COlll CllI S. The responses provided there in are true to my knowledge.
and as to those matters stated upon information and belief, I believe them to be tru e. I verify
under penalty ol' pcrj ury under the laws an he Umled States of /\mcn cn that the forego ing is true

20
and corrcct E",ecuted on April _ . 2012.

T hor ~l)

"rri'lm

A-926
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 172 of 245

EXHIBIT T

A-927
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 173 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 NFFO TO
DEFENDANTS’ SECOND SET OF INTERROGATORIES AND
REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Norsk faglitterær forfatter- og oversetterforening (The Norwegian Non-Fiction
Writers and Translators Association) (“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

A-928
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 174 of 245

INTERROGATORY NO. 2: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify all author royalties and/or other income generated by such
work from 2001 to the present and itemized by source, as well as documents sufficient to
substantiate such royalties and/or income.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff
responds that no works were listed on Schedule A.
INTERROGATORY NO. 3: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify a) the number of hardback and/or paperback copies printed in
each year from 2001 to the present; b) the number of hardback and/or paperback copies
remaining in the inventory of any publisher or publisher’s agent at the end of each year from
2001 to the present; and c) the number of hardback and/or paperback copies remaining in the
inventory of any wholesaler or wholesaler’s agent at the end of each year from 2001 to the
present; d) the number of hardback and/or paperback copies remaining in the inventory of any
retailer or retailer’s agent at the end of each year from 2001 to the present; e) the number of
hardback and/or paperback copies returned by any retailer for each year from 2001 to the
present; and f) documents sufficient to substantiate such numbers.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff
responds that no works were 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: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
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.

6

A-929
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 175 of 245

RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
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: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
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.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
SPECIFIC OBJECTIONS AND RESPONSES TO DOCUMENT REQUEST
REQUEST NO. 1: For each work, if any, listed on Schedule A to your Objections and
Responses to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents (“Schedule A”), and for each work for which one or more of your members is a legal
or beneficial owner of a copyright or an exclusive right under a copyright that you claim has
been infringed by one or more of the Defendants (“Relevant Member Work”), documents
sufficient to identify whether that work is or has ever been part of any effort to reprint out-ofprint works in any form, including without limitation the Author’s Guild’s “BackinPrint.com”
service.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 1: All agreements with and/or related to iUniverse.com, or any other service
offering per-order printing in a hardback, paperback or electronic format, that involve any work
listed on Schedule A or any Relevant Member Work.

7

A-930
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 176 of 245

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. 4: 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: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 5: 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, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 6: 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, Plaintiff responds
that no works were listed on Schedule A.

9

A-931
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 177 of 245

REQUEST NO. 7: 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: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 8: 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. 9: 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. 10: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, Plaintiff responds
that no such documents have been identified.

10

A-932
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 178 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

11

A-933
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 179 of 245

VERIFICATION

I, Jan Terje Helmli, General Counsel for Plaintiff Norsk Faglitterrer Forfatter- Og
Oversetterforening, have read the foregoing Responses to Intenogatory 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

20
correct. Executed on April_. 2012.

FKKS: 45388B.vl

19894.300

A-934
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 180 of 245

EXHIBIT U

A-935
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 181 of 245

Page 1
1
2
3
4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------X
THE AUTHORS GUILD, INC., ET AL.,

5

Plaintiff,
Index no. 11 Civ. 6351 (HB)

6

VS.
7

HATHITRUST, et al.,
8

9

Defendants.
--------------------------------X

10
11

**C O N F I D E N T I A L**

12
13
14
15
16
17
18

DEPOSITION
OF
PAT CUMMINGS
Tuesday, May 22, 2012
1114 Avenue of the Americas
New York, New York

19
20
21

22

Reported by:
AYLETTE GONZALEZ, CLR
JOB NO. 49735

23
24
25

TSG Reporting - Worldwide

877-702-9580

A-936
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 182 of 245

Page 2
1
2

DATE:

May 22, 2012

3

TIME:

9:57 a.m.

4
5
6

Deposition of PAT CUMMINGS, held at the

7

offices of KILPATRICK TOWNSEND & STOCKTON, LLP,

8

1114 Avenue of the Americas, New York, New

9

York,

10036, pursuant to NOTICE, before

10

AYLETTE GONZALEZ, a Certified LiveNote

11

Reporter and Notary Public of the State of

12

New York.

13
14
15
16
17
18
19
20
21
22
23
24
25

TSG Reporting - Worldwide

877-702-9580

A-937
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 183 of 245

Page 3
1
2

A P P E A R A N C E S:

3
4

KILPATRICK TOWNSEND & STOCKTON

5

Counsel for Defendant

6

1114 Avenue of the Americas

7

New York, New York

8

BY:

10036

JOSEPH PETERSEN, ESQ.

9
10
11
12

FRANKFURT KURNIT KLEIN & SELZ

13

Counsel for Plaintiff

14

488 Madison Avenue

15

New York, New York

16

BY:

10022

JEREMY GOLDMAN, ESQ.

17
18
19
20
21

ALSO PRESENT:
JAN CONSTANTINE, The Authors Guild, Inc.

22
23
24
25

TSG Reporting - Worldwide

877-702-9580

A-938
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 184 of 245

Page 4
1

CONFIDENTIAL-PAT CUMMINGS

2

P A T

3

witness, having been first duly sworn by a

4

Notary Public of the State of New York, was

5

examined and testified as follows:

6

EXAMINATION BY

7

MR. PETERSEN:

8
9
10

C U M M I N G S, called as a

Q.

name is Joe Petersen.

13
14
15
16

My

I'm counsel for the

libraries in the HathiTrust matter.

11
12

Good morning, Ms. Cummings.

Could you please state your name
and address for the record.
A.

Pat Cummings.

28 Tiffany Place,

Brooklyn, New York 11231.
Q.

And have you ever been deposed

before?

17

A.

No.

18

Q.

Let me give you a quick rundown on

19

the rules.

I'll be asking a series of

20

questions.

My goal isn't to trick you at all.

21

If you don't understand the question, please

22

let me know, and I'll rephrase the question.

23

Is that clear?

24

A.

Yes.

25

Q.

And just -- the Reporter is taking
TSG Reporting - Worldwide

877-702-9580

A-939
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 185 of 245

Page 19
1

CONFIDENTIAL-PAT CUMMINGS

2

libraries are currently doing.

3

in time, do you have any understanding of the

4

use made by the libraries with respect to the

5

digitized works in the HathiTrust Corpus?

6

MR. GOLDMAN:

7

lacks foundation.

8

A.

At this point

9
10

Object to the form;

I don't know what uses they're

making of it.
Q.

Do you have any knowledge as to

11

whether or not those -- your works are

12

available to someone who accesses the

13

HathiTrust Corpus?

14

in full text?

15

Are those works available

MR. GOLDMAN:

Object to the form.

16

A.

I don't know.

17

Q.

Have you ever used the HathiTrust

18

website?

19

A.

No.

20

Q.

Have you ever seen the HathiTrust

21

website?

22

A.

No.

23

Q.

Turning back in time to when

24

Mr. Aiken approached you concerning this

25

lawsuit, was there any discussion concerning
TSG Reporting - Worldwide

877-702-9580

A-940
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 186 of 245

Page 56
1

CONFIDENTIAL-PAT CUMMINGS

2
3
4

Q.
item.

You say an extreme cherry-picked

What do you mean by that?
A.

I mean that if you have a problem

5

with somebody taking your work, to say that

6

you're depriving blind people seemed to come

7

out of -- not left field, but seemed to be an

8

extreme situation that was not the intent of

9

the suit.

And to the best of my memory, our

10

discussion was about how to present the

11

Guild's position publicly so that we were

12

representing ourselves in the manner that we

13

felt, you know, our issues to be, and not to

14

be defined.

15

Q.

Would you agree with me that it's

16

beneficial to individuals with disabilities to

17

have access to the works that have been

18

digitized as part of the HathiTrust project?

19

A.

20

No.
MR. GOLDMAN:

Objection to the

21

form.

22

A.

No.

23

Q.

So, you do not believe the print

24
25

disabled should have access to those works?
MR. GOLDMAN:

Objection to the

TSG Reporting - Worldwide

877-702-9580

A-941
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 187 of 245

Page 57
1

CONFIDENTIAL-PAT CUMMINGS

2

form.

3

A.

No.

4

Q.

I'm going to mark, as PC-5, a

5

document entitled, "Objections And Responses

6

of Plaintiff Pat Cummings To Defendants' First

7

Set Of Interrogatories And Request For The

8

Production of Documents."

9

(Exhibit PC-5, document entitled

10

"Objections And Responses Of Plaintiff

11

Pat Cummings to Defendants' First Set

12

Of Interrogatories And Requests For

13

The Production of Documents," marked

14

for identification, as of this date.)

15
16

MR. GOLDMAN:

Is there a question

pending?

17

MR. PETERSEN:

I'm waiting for

18

her, Ms. Cummings, to read the

19

document.

20

Q.

Do you recognize Exhibit 5?

21

A.

Yes.

22

Q.

Have you seen it before today?

23

A.

Yes.

24

Q.

What is it?

25

A.

Okay; it is the Objections And
TSG Reporting - Worldwide

877-702-9580

A-942
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 188 of 245

Page 125
1
2

CONFIDENTIAL-PAT CUMMINGS
Q.

So, how could it be that it could

3

have any impact on your sales if the libraries

4

are not making the digital copy available of

5

your work?

6

upon sales of your works?

7
8

A.

How could that have any bearing

I wouldn't know.

That's the

answer.

9

MR. PETERSEN:

I don't think I

10

have anything further.

11

much for your time.

12

it.

13

Thank you very

I do appreciate

(Whereupon, at 12:34 p.m., the

14

Examination of this Witness was

15

concluded.)

16
17

________________________
18

PAT CUMMINGS

19
20

Subscribed and sworn to before me

21

This _______ day of __________, 2012.

22

____________________________________
23

NOTARY PUBLIC

24
25

TSG Reporting - Worldwide

877-702-9580

A-943
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 189 of 245

Page 126
1

CONFIDENTIAL-PAT CUMMINGS

2

------------------I N D E X------------------

3

WITNESS

EXAMINATION BY

4

PAT CUMMINGS

MR. PETERSEN

PAGE
4

5
6

DIRECTIONS: [None]

7

MOTIONS:

[None]

8

REQUESTS:

[None]

9
10

-----------------EXHIBITS--------------------

11

DEFENDANT'S EXHIBIT

12

Exhibit PC-1,

13

Three pages of the website of Pat

14

Cummings.................................25

15

Exhibit PC-2,

16

Document bearing Bates label

17

AG0003864 through '866..................43

18

Exhibit PC-3,

19

Document bearing Bates label

20

AG0003867 through '868..................48

21

Exhibit PC-4,

22

Document bearing Bates label

23

AG0003870 through '872..................49

FOR I.D.

24
25

TSG Reporting - Worldwide

877-702-9580

A-944
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 190 of 245

Page 127
1

CONFIDENTIAL-PAT CUMMINGS

2

-----------------EXHIBITS--------------------

3

DEFENDANT'S EXHIBIT

4

Exhibit PC-5,

5

Document entitled "Objections And

6

Responses Of Plaintiff Pat Cummings

7

to Defendants' First Set Of

8

Interrogatories And Requests For The

9

Production of Documents................57

FOR I.D.

10

Exhibit PC-6,

11

Digital copy of Talking with Artists...73

12

Exhibit PC-7,

13

Document entitled "Objections and

14

Responses of Plaintiff Pat Cummings

15

to Defendants' Second Set Of

16

Interrogatories And Requests For The

17

Production of Documents................74

18

Exhibit PC-8,

19

Document bearing Bates label

20

AG0002346 through '346................79

21

Exhibit PC-9,

22

Document bearing Bates label

23

AG0000063 through '079................86

24
25

TSG Reporting - Worldwide

877-702-9580

A-945
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 191 of 245

Page 128
1

CONFIDENTIAL-PAT CUMMINGS

2

-----------------EXHIBITS--------------------

3

DEFENDANT'S EXHIBIT

4

Exhibit PC-10,

5

Document bearing Bates label

6

AG0002365 through '351................89

7

Exhibit PC-11,

8

Document bearing Bates label

9

AG0000027 through '042................95

FOR I.D.

10

Exhibit PC-12,

11

Document bearing Bates label

12

AG0002388 through '2408...............97

13

Exhibit PC-13,

14

Document bearing Bates label

15

AG0000011 through '026...............103

16

Exhibit PC-14,

17

Document bearing Bates number

18

AG0002479 through '485...............105

19

Exhibit PC-15,

20

Document bearing Bates label

21

AG0002301 through '345...............113

22

Exhibit PC-16,

23

Document bearing Bates label

24

AG0000043 through '044...............114

25

TSG Reporting - Worldwide

877-702-9580

A-946
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 192 of 245

Page 129
1

CONFIDENTIAL-PAT CUMMINGS

2

-----------------EXHIBITS--------------------

3

DEFENDANT'S EXHIBIT

4

Exhibit PC-17,

5

Document bearing Bates label

6

AG0002387 through '366...............116

7

Exhibit PC-18,

8

Document bearing Bates label

9

AG0002426 through '409...............118

FOR I.D.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

TSG Reporting - Worldwide

877-702-9580

A-947
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 193 of 245

Page 130
1

CONFIDENTIAL-PAT CUMMINGS

2

C E R T I F I C A T E

3
4

STATE OF NEW YORK

)
:

5

COUNTY OF RICHMOND

SS.:
)

6
7

I, AYLETTE GONZALEZ, a Notary Public

8

for and within the State of New York, do

9

hereby certify:

10

That the witness, PAT CUMMINGS,

11

whose examination is hereinbefore set forth

12

was duly sworn and that such examination is a

13

true record of the testimony given by that

14

witness.

15

I further certify that I am not

16

related to any of the parties to this action

17

by blood or by marriage and that I am in no

18

way interested in the outcome of this matter.

19
20

IN WITNESS WHEREOF, I have hereunto
set my hand this 4th day of June, 2012.

21
22

__________________________
AYLETTE GONZALEZ

23

(Notary Public No. 01G06228612
Expiration date:

9/27/2014)

24
25

TSG Reporting - Worldwide

877-702-9580

A-948
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 194 of 245

Page 131
1
2
3

4

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

CONFIDENTIAL-PAT CUMMINGS
ERRATA SHEET FOR THE TRANSCRIPT OF:
Case Name: The Authors Guild Inc v. HathiTrust
Dep. Date: May 22, 2012
Deponent:
PAT CUMMINGS
Pg. Ln. Now Reads
Should Read
Reason
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
________________________
PAT CUMMINGS

21

SUBSCRIBED AND SWORN BEFORE ME,
22

This___ day of_____________, 2012.
23

24
25

__________________________________
Notary Public
My Commission Expires:__________
TSG Reporting - Worldwide

877-702-9580

A-949
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 195 of 245

EXHIBIT V

A-950
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 196 of 245

Page 1
1
2

UNITED STATES DISTRICT COURT

3

SOUTHERN DISTRICT OF NEW YORK

4

-------------------------------x
THE AUTHORS GUILD, INC.,

5

et al.,

6

Plaintiffs,

7

vs.

Index No.
11 Civ. 6351 (HB)

8

HATHITRUST, et al.,

9

Defendants.
-------------------------------x

10
11
12
13

VIDEO TELECONFERENCE
DEPOSITION OF HELGE RØNNING

14

New York, New York

15

May 29, 2012

16
17
18
19
20
21
22
23
24

Reported by:
FRANCIS X. FREDERICK, CSR, RPR, RMR

25

JOB NO. 50107
TSG Reporting - Worldwide

877-702-9580

A-951
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 197 of 245

Page 2
1
2
3
4
5

May 29, 2012

6

11:30 a.m.

7
8
9

VIDEO TELECONFERENCED deposition

10

of HELGE RØNNING, held at the offices of

11

Kilpatrick, Townsend & Stockton LLP,

12

1114 Avenue of the Americas,

13

New York, New York, pursuant to

14

Notice, before Francis X. Frederick, a

15

Certified Shorthand Reporter, Registered

16

Merit Reporter and Notary Public of the

17

States of New York and New Jersey.

18
19
20
21
22
23
24
25

TSG Reporting - Worldwide

877-702-9580

A-952
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 198 of 245

Page 3
1
2

A P P E A R A N C E S:

3
4

FRANKFURT KURNIT KLEIN & SELZ

5

Attorneys for Plaintiffs

6

488 Madison Avenue

7

New York, New York

8

BY:

10022

JEREMY GOLDMAN, ESQ.

9
10

KILPATRICK TOWNSEND & STOCKTON

11

Attorneys for Defendants

12

1114 Avenue of the Americas

13

New York, New York

14

BY:

10036

JOSEPH PETERSEN, ESQ.

15
16
17
18
19
20
21
22
23
24
25

TSG Reporting - Worldwide

877-702-9580

A-953
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 199 of 245

Page 4
1
2

H. RØNNING
H E L G E

R O N N I N G,

called as a

3

witness, having been duly sworn by a

4

Notary Public, was examined and

5

testified as follows:

6

EXAMINATION BY

7

MR. PETERSEN:

8
9

Q.

Good afternoon, Professor Rønning.

Should I refer to you as Professor Rønning or

10

Dr. Rønning or Mr. Rønning?

11

like me to refer to you?

How would you

12

A.

Professor is fine with me.

13

Q.

That's great.

14

That certainly

suits me as well.

15

Good afternoon, Professor Rønning.

16

My name is Joe Petersen.

17

the Libraries in the HathiTrust case.

18

you ever sat for a deposition before?

19

A.
Q.

Okay.

Have

No.

20

And I'm counsel for

So given that, and given

21

the fact that we're doing this on video, I'll

22

just briefly give you some of the ground rules

23

for the deposition.

24

understand, I'm going to be asking you

25

questions here this afternoon.

I'm sure as you

TSG Reporting - Worldwide

And when I do
877-702-9580

A-954
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 200 of 245

Page 52
1
2
3

H. RØNNING
rights to my works.
Q.

So you never concerned yourself at

4

all with the type of use made by the libraries

5

with respect to the digitization project.

6
7

MR. ROSENTHAL:
Q.

Objection.

Professor, as you sit here today

8

do you have any understanding of the types of

9

uses made by my clients with respect to the in

10

copyright -- the works that are presumed to be

11

in copyright that are included in the

12

HathiTrust digital library?

13
14
15

MR. ROSENTHAL:
A.

No.

Objection.

And let me answer -- let me

answer.

16

You are, according to Norwegian

17

copyright law, not allowed to do digitization

18

without explicit permission of the author or a

19

representative of the author because that goes

20

against the basis of all continental copyright

21

acts, namely the moral right to your work.

22

Q.

So you're viewing this through the

23

lens of Norwegian copyright law; is that

24

correct, Professor?

25

MR. ROSENTHAL:

Objection.

TSG Reporting - Worldwide

877-702-9580

A-955
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 201 of 245

Page 80
1

H. RØNNING

2

a student in the US wanted -- that was blind

3

wanted to read one of your articles, do you

4

have any knowledge as to how that student

5

could obtain a copy that he or she could

6

actually understand?

7
8
9

MR. ROSENTHAL:
A.

Objection.

No, I do not know.

I mean, I know

what's the situation in Norway.

And I know

10

that that material for the people with

11

impaired sight would typically be handled by

12

the Norwegian Foundation for the Blind and

13

they would do that under the Norwegian

14

Copyright Act and those who are owed copyright

15

to be paid remuneration.

16

blind student wants a book to be as an audio

17

book he or she can ask for it and then it can

18

be recorded for him and the copyright owner

19

will be remunerated and she will get it under

20

the Norwegian Foundation.

21

Q.

Typically, if a

But you have no understanding of

22

how a US student would obtain -- would -- a US

23

student with a print disability would obtain

24

access to your works.

25

A.

No.

Why should I?
TSG Reporting - Worldwide

877-702-9580

A-956
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 202 of 245

Page 142
1

H. RØNNING

2

questions.

Thank you very much,

3

Professor.

You're done.

4
5
6

THE WITNESS:

All right.

This has

been very interesting.
(Time Noted:

2:27 p.m.)

7
8
9
10
11
12
13
14
15
16
17
18
19

____________________

20

HELGE RØNNING

21
22

Subscribed and sworn to before me

23

this 29th day of May, 2012.

24
25

_________________________________
TSG Reporting - Worldwide

877-702-9580

A-957
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 203 of 245

Page 143
1
2
3

C E R T I F I C A T E
STATE OF NEW YORK

4
5

)
: ss.

COUNTY OF NEW YORK

)

6

I, FRANCIS X. FREDERICK, a

7

Notary Public within and for the State

8

of New York, do hereby certify:

9

That HELGE RØNNING, the witness

10

whose deposition is hereinbefore set

11

forth, was duly sworn by me and that

12

such deposition is a true record of

13

the testimony given by the witness.

14

I further certify that I am not

15

related to any of the parties to this

16

action by blood or marriage, and that

17

I am in no way interested in the

18

outcome of this matter.

19

IN WITNESS WHEREOF, I have

20

hereunto set my hand this 8th day of

21

June, 2012.

22
23
24

_____________________

25

FRANCIS X. FREDERICK
TSG Reporting - Worldwide

877-702-9580

A-958
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 204 of 245

Page 144
1
2

----------------- I N D E X ------------------

3

WITNESS

EXAMINATION BY

PAGE

4

HELGE RØNNING

MR. PETERSEN

4

5
6
7
8
9

----------- INFORMATION REQUESTS -------------

10

DIRECTIONS:

11

RULINGS:

12

TO BE FURNISHED:

13

REQUESTS:

14

MOTIONS:

100

NONE
NONE

NONE
NONE

15
16
17
18
19
20
21
22
23
24
25

TSG Reporting - Worldwide

877-702-9580

A-959
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 205 of 245

Page 145
1
2

------------------ EXHIBITS ------------------

3

HR

4

Exhibit 1

5

Resumé of Helge Rønning................. 7

6

Exhibit 2

7

article entitled

8

Intellectual property

9

rights and the political

FOR ID.

10

economy of culture...................... 72

11

Exhibit 3

12

article entitled

13

Systems of control and regulation:

14

Copyright issues, digital divides

15

and citizens' rights.................... 74

16

Exhibit 4

17

document

18

headed Exhibit A........................ 83

19

Exhibit 5

20

Standard Contract for

21

Non-Fiction Literature

22

bearing production

23

numbers AG 0000144

24

through AG 0000157...................... 88

25

TSG Reporting - Worldwide

877-702-9580

A-960
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 206 of 245

Page 146
1
2

------------------ EXHIBITS ------------------

3

HR

4

Exhibit 6

5

Objections and Responses

6

of Plaintiff Helge Rønning

7

to Defendants' First Set of

8

Interrogatories and Requests

9

for the Production of Documents......... 97

FOR ID.

10

Exhibit 7

11

Objections and Responses of

12

Plaintiff Helge Rønning to

13

Defendants' Second Set of

14

Interrogatories and Requests

15

for the Production of Documents......... 113

16
17
18
19
20
21
22
23
24
25

TSG Reporting - Worldwide

877-702-9580

A-961
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 207 of 245

Page 147
1
2
3
4
5
6
7

NAME OF CASE: AUTHORS GUILD v. HATHITRUST
DATE OF DEPOSITION: MAY 29, 2012
NAME OF WITNESS: HELGE RØNNING
Reason codes:
1. To clarify the record.
2. To conform to the facts.
3. To correct transcription errors.
Page _______ Line ______ Reason _____
From __________________ to _____________

8
9
10

Page
From
Page
From

_______ Line ______ Reason _____
__________________ to _____________
_______ Line ______ Reason _____
__________________ to _____________

Page
From
Page
From

_______ Line ______ Reason _____
__________________ to _____________
_______ Line ______ Reason _____
__________________ to _____________

Page
From
Page
From

_______ Line ______ Reason _____
__________________ to _____________
_______ Line ______ Reason _____
__________________ to _____________

Page
From
Page
From

_______ Line ______ Reason _____
__________________ to _____________
_______ Line ______ Reason _____
__________________ to _____________

Page
From
Page
From

_______ Line ______ Reason _____
__________________ to _____________
_______ Line ______ Reason _____
__________________ to _____________

11
12
13
14
15
16
17
18
19
20
21
22
23

____________________________
24

HELGE RØNNING
25

TSG Reporting - Worldwide

877-702-9580

A-962
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 208 of 245

EXHIBIT W

A-963
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 209 of 245

Peter Leonard (Univ. Chicago)
Timothy R. Tangherlini (UCLA)

Trawling in the Sea of the Great Unread:
Sub-Corpus Topic Modeling and Humanities Research

Abstract
Given a small, well-understood corpus that is of interest to a Humanities scholar, we
propose sub-corpus topic modeling (STM) as a tool for discovering meaningful passages in a
larger collection of less well understood texts. STM allows Humanities scholars to discover
unknown passages from the vast sea of works that Moretti calls the “great unread,” and to
significantly increase the researcher’s ability to discuss aspects of influence and the
development of intellectual movements across a broader swath of the literary landscape. In
this article, we test three typical Humanities research problems: in the first, a researcher
wants to find text passages that exhibit latent semantic similarities to a collection of
influential non literary texts from a single author (here Darwin); in the second, a researcher
wants to discover literary passages related to a well understood corpus of literary texts (here
emblematic texts from the Modern Breakthrough); and in the third, a researcher hopes to
understand the influence that a particular domain (here folklore) has had on the realm of
literature over a series of decades. We explore these research challenges with three
experiments, the first focused on the echoes of Darwin’s work in the broader Danish literary
realm; the second focused on unknown authors from the “Modern Breakthrough,” a shift in
Danish (and Nordic) literature away from Romanticism and toward Naturalism starting in
the 1870s, and concomitant with the translation of Darwin’s works into Danish; and the

1

A-964
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 210 of 245
Leonard and Tangherlini 2

third focused on the emergence of folklore and a turn toward rural motifs in Danish
literature from Romanticism through the progressive literature of the early twentieth century.
Keywords: Topic Modeling, Literature, The Modern Breakthrough, Folklore, Denmark

Introduction
Over the past five years, literary scholars have acquired access to increasingly large
collections of digitized texts. Consequently, they struggle with a new inflection of the age-old
problem that for any given research question there exist far too many works in the target
corpus to be able to read all of them carefully. While simple barriers such as physical access
restricted research in the past, these barriers have begun to disappear in the digital age and
people now have broad access to previously difficult to access works. To account for this
change in access to materials, researchers must conduct searches that not only have high
precision as was the case with the limited searches based on canonical views of literary
history—standard practice in Humanities research for many centuries—but also have high
recall. If one has access to all of the fiction published in Denmark from 1860-1920, for
example, and one is engaged in a study focused on this literature, one can no longer suggest
that reading the best-known works (and some from around the edges) provides adequate
coverage of the literary landscape. Similarly, if one is interested in specific literary themes or
topics, the desire to discover those themes or topics across the entire corpus is too enticing
to ignore.
Text-mining techniques that allow for the rapid identification of “passages of
interest” contribute significantly to a scholar’s ability to narrow down a broader corpus into
a research collection and to understand the relationships between the works in this
collection, thereby holding out the promise that one can develop a more encompassing

A-965
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 211 of 245
Leonard and Tangherlini 3

understanding of a particular field. Accordingly, one of the goals of our work is to develop
techniques that allow for the rapid identification of a large collection of passages from
mostly unknown works that intersect with well-known passages from well-known works.
These techniques in turn can contribute to the development of new perspectives not only on
the known corners of the literary realm (e.g. “the canon”) but also on parts of the literary
corpus largely ignored by previous scholarship. By developing these techniques, problems
posed by the recent emergence of “big data” collections of literature such as Google Books,
HathiTrust, and the Internet Archive, no longer stand as barriers to research but instead as
considerable research assets. The challenge resides in developing fast, intuitive and easy-touse techniques that address the problems of “big data” collections while taking advantage of
the expert knowledge that has developed over the course of many decades in the study of
literature.
With the emergence of “big data” collections, there are too many accessible texts to
read each one closely; even if one could read them closely, it is unlikely that one could read
them consistently; and if one could read them consistently, it is inconceivable that one would
be able to remember even a small percentage of them. Developing a model of “meaning” by
applying unsupervised machine learning techniques across the entire corpus might be a
solution to this problem. Yet, while this is an intriguing idea and one not addressed in this
paper, such an approach would have limited applicability beyond providing a first level
approximation of the general contours of topics in a particular literature at a particular time.
[1] Except for encyclopedic projects, most contemporary literary scholarship does not focus
on making broad generalizations about a national literature, but rather emphasizes narrower
developments in the literary landscape coupled to a thorough contextual knowledge of the
impact and spread of those developments. Not surprisingly, analysis of this type is largely

A-966
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 212 of 245
Leonard and Tangherlini 4

dependent on a scholar’s “domain expertise”.
Literary domain expertise is formed from the study of an imperfect and largely
arbitrary canon.[2] In “The Slaughterhouse of Literature,” Franco Moretti notes that “[t]he
majority of books disappear forever—and ‘majority’ actually misses the point: if we set
today’s canon of nineteenth-century British novels at two hundred titles (which is a very high
figure), they would still be only about 0.5 percent of all published novels” (Moretti 2000,
207). Despite this arbitrariness underlying canon formation, an inherent passive connection
exists between the canon and the hundreds of thousands of literary works digitized in a
project such as Google Books. Thus the canonical texts upon which domain expertise is
largely founded form a part, no matter how statistically insignificant, of the entire corpus. An
excellent example of this can be found in the context of Nordic literature, the literature that
comprises our “domain expertise.” One of the goals of our work is to transform this passive
relationship between the canonical texts on the one hand and all of the other books in the
Google Books corpus on the other hand into an active relationship. This transformation
represents an important step toward developing techniques for the discovery of “passages
of interest” in a large unlabeled corpus given a series of well-understood texts.
We conceive of this approach as a targeted fishing expedition: a small sub-corpus of
literary works serves as a trawl line and is passed through the “Sea of the Great Unread”;
whatever gets “caught” will likely be of interest to someone interested in the sub-corpus. By
considering all of the books in the domain but limiting the search to topics of interest based
on the sub-corpus (or “corpus of interest”), this approach greatly increases the recall of
otherwise overly “precise” searches that have characterized canonical research in the
Humanities.[3] In our work presented below, we fashion the hooks on our trawl line by
implementing Latent Dirichlet Allocation (Blei, Ng, Jordan 2007) on a small, well-

A-967
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 213 of 245
Leonard and Tangherlini 5

understood sub-corpus and use the derived topic models to “catch” texts in the larger,
poorly understood corpus.[4] We label this approach sub-corpus topic modeling (STM) [figure 1].
Sub-Corpus Topic Modeling (STM)
lC~"nk ln.

J~ ,,""OIJI" '
M od d l . ~

I

(LDA)

. :t~~
~"'~ q~.u
l~

{}
' E.oc~" I,p"' !
~.eme"

..

~

"

fig. 1: Flowchart showing the STM process
Limitations of Keyword Search
“Whole text” search based on probabilistic topic modeling has distinct advantages
over simple keyword search. Certainly, the temptation exists for many literary scholars to
believe that their domain expertise provides them with sufficient knowledge to perform
productive keyword searches. For example, if “the countryside” is an important concept in
nineteenth century British novels, a domain expert should be able to develop a limited set of
keywords—or perhaps key phrases—related to the countryside, such as “manor”, “farm”,
and “field”, and retrieve a large number of new texts. Implementing a simple thesaurus or
WordNet approach could further augment this strategy. This approach certainly aligns with
current search strategies in the Humanities, yet it often fails to provide the higher degree of
recall that the current research environment demands. Similarly, it fails to discover passages
that do not include those particular keywords (or their synonyms). Apart from being tedious
(particularly in the case of highly inflected languages such as Icelandic), this strategy, for all
intents and purposes, increases recall simply by iterating through a series of high-precision

A-968
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 214 of 245
Leonard and Tangherlini 6

searches. It also produces results that are hard to duplicate.
Cameron Blevins’s work on the application of topic modeling to Martha Ballard’s
Diary provides a good counter example to keyword search (Blevins 2010). Spirituality
emerges as an important theme in Ballard’s diary, a late-eighteenth/early-nineteenth century
text written over the course of three decades by a midwife in Maine. Yet a search for the
keyword “God” misses numerous passages related to spirituality, as Ballard uses paraphrases
such as “his great name to him who is kind to the Evle and unthankfull, whose tender
mercies are over all his work” (Blevins 2010). Even a researcher with an expert grasp of how
Americans in the late eighteenth century expressed their thoughts about religion and God
would risk missing passages that did not conform to these expectations. In a series of
electronic articles on the diary, Blevins demonstrates that a more productive approach is to
let the corpus organize itself into coherent topics (Blevins 2010). The historian can then label
the resulting topics with meaningful descriptions. Here, the computer algorithm is given the
task of what it does best: counting words and calculating probabilities of term cooccurrence. The scholar is given the task of what he or she does best: applying domain
expertise and experience for labeling and curating the topics.
This division of labor has significant implications for the extraction of meaning from
large corpora. As opposed to keyword search which requires that the researcher know what
to look for a priori, the topic modeling approach asks the algorithm to reveal latent semantic
patterns in the data, and couples these latent patterns with expert-applied labels. The
researcher can subsequently “curate” these labeled topics, weeding out uninteresting ones
and focusing on those that appear promising for the research problem at hand. Since topic
modeling algorithms can never “understand” the words they process and similarly cannot
propose firm conclusions about the books they have “read,” scholars must serve in those

A-969
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 215 of 245
Leonard and Tangherlini 7

crucial capacities.
In what follows, we present preliminary findings from three experiments that make
use of STM as a means for sophisticated search in a large, unlabeled corpus and explore the
extent to which this approach provides results that would be hard to achieve with keyword
search.[5] The STM dashboard [see figure 2 as an example] provides the researcher with
useful information including (a) visualizations that show topics as a word cloud and an ngram cloud and that also allow the researcher to label the topics, (b) a bar-graph showing the
number of text passages (chunks) per year, (c) a ranked list of text chunks, (d) a pie-chart
showing the degree of saturation for any given selected text chunk, and (e) a drill-down
method for not only reading the identified passage but also linking to the full work in
Google Books. At the bottom of the screen, a simple network visualization of labeled topics
(f) allows a researcher to move between topics with links based on shared passages in the
sub-corpus. In this context, it is important to understand that LDA conceives of texts as a
mixture of topics. In future implementations of the STM dashboard, a researcher will be able
to upload a sub-corpus and select the number of topics to generate for that sub-corpus, as
well as curate the generated model by providing labels for topics or deleting them (topic
model curation).[6]
First Experiment: Natural Science, Naturalism and the Modern Breakthrough
The translation of Charles Darwin’s publications in the early 1870s into Danish was a
seminal event in Nordic literary history. Though an English-speaking elite could read On the
Origin of the Species in 1859 and The Descent of Man in 1871, Peter Kjærgaard, Niels Gregersen
and Hans Hjermitslev note that the translation of the original texts, “was an important step
in the education of the public. Without the book[s] in Danish the public was easily misled by
the voices of immature adherents… Being able to read the original work[s], they could now

A-970
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 216 of 245
Leonard and Tangherlini 8

witness for themselves” (Kjærgaard, Gregersen and Hjermitslev 2008, 150). At the time,
progressive Danish intellectuals were in desperate need of transformative ideas from abroad
in literature as well as in science. Conservatism and parochialism threatened to be
triumphant, led in part by the Romantic leanings of Denmark’s foremost scientist Hans
Christian Ørsted who, in his non-scientific writings, set a tone of disinterest in Positivism.
Frustrated by the slow pace of change and the threat of backsliding, the radical
literary critic Georg Brandes eagerly appropriated Darwin’s ideas on natural selection as a
weapon in his fight against Theocentrism, a notion that was quickly developing a
stranglehold on intellectual and artistic trends. Although initially on the edges of the literary
and academic establishment, Brandes, his brother Edvard (a leading journalist), and a close
circle of artists and intellectuals echoed Brandes’s passionate argument that “[w]riters should
present nature, the world and the people in it as they were and, through that, work in the
service of progressive ideas and social reform” (Kjærgaard, Gregerslev and Hjermitslev 2008,
149). Consequently, as Kjærgaard, Gregersen and Hjermitslev note, “Darwin was celebrated
in Brandes’s circle as founder of an entirely new—and to them correct—view of nature”
(2008, 149).
At the beginning of the 1870s, Jens Peter Jacobsen, a young Danish botanist, began
publishing articles explaining and promoting Darwinism in the journal, Nyt dansk
Maanedsskrift [New Danish Monthly], a magazine that was closely allied with the Brandes
circle. Jacobsen had previously received the gold medal from the University of Copenhagen
given to the best thesis for his fieldwork on fresh-water algae but by the 1880s had largely
abandoned his scientific endeavors to pursue literature. Suffering from tuberculosis,
Jacobsen left Copenhagen and moved back to his parents’ house in northern Jutland and
began writing poetry and fiction. He is now recognized not for his botanical work, but rather

A-971
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 217 of 245
Leonard and Tangherlini 9

for his literary oeuvre and is considered to be one of Denmark’s most important authors.
This position was solidified by his inclusion, despite his young age, in Brandes’s Det moderne
Gjennembruds Mænd [Men of the Modern Breakthrough] (1883), a defining work in Nordic
literary studies. In Jacobsen, Brandes found an advocate of Darwin equally comfortable with
the written page and the Petri dish, a characteristic entirely consistent with the goals of the
Modern Breakthrough.
After honing his thoughts on Darwin by publishing summaries, interpretations, and
commentaries, Jacobsen undertook a translation of On the Origin of the Species, published as
one volume in 1872, and a translation of the first two volumes of The Descent of Man,
published in 1874 and 1875 respectively. These were well received and widely read (or at
least, widely purchased). Although the myth of Jacobsen as the first significant promoter of
Darwinism in Denmark is likely apocryphal, his interpretive work and unabridged
translations solidified his role as an important spoke in the scientific and literary networks of
the time. Partly because of Jacobsen and Brandes’s roles in promoting Darwin’s work in
Denmark, Darwin received as much interest in fields outside of the Natural Sciences as
within (Kjærgaard and Gregersen 2006). Jacobsen himself wrote of his desire to “exchange
the ancient poetry of Mystery with the new poetry of Law, […] swap arbitrary, supernatural
and personal Governance for a clear Order of Nature” (Jacobsen 1871a, 419).[7]
Given these developments, and the role of Darwin’s writings in anchoring the push
toward Naturalism, a challenge question immediately presents itself: Can we find traces of
this shift to a natural-scientific understanding of society presaged by the translation of
Darwin’s works in the 1870s by Jacobsen in the larger corpus of Danish language works in
Google Books? Beyond the works of Jacobsen, are there other literary works lurking in the
Sea of the Great Unread that can help us explore the penetration of Darwin’s ideas—granted

A-972
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 218 of 245
Leonard and Tangherlini 10

filtered through Jacobsen’s translational lens—into the broader literary world? As outlined
above, our strategy is to let Jacobsen’s translations of Darwin organize themselves into
“topic models” and then use these as the basis of our fishing expedition. Instead of
presuming that we know which keywords best represent this Naturalist turn, we allow the
algorithm to present groupings of “text chunks”—in this case paragraphs—that we label and
curate.[8] This labeled and curated sub-corpus topic model becomes the basis of the
subsequent searches in the broader corpus of Danish literary texts. Presumably, if Danish
literature is influenced by Jacobsen’s translations of Darwin, then we should discover many
of these works ranked highly in the resulting search results.
Concatenating the Danish translations of On the Origin of Species and The Descent of Man
and modeling the topics in these works at the level of one hundred topics generates some
interesting results. One topic, that we label “social instinct,” is constituted by words and
phrases such as instinkter [instincts], følelser [feelings], sympathy [sympathy], moralske følelse
[moral feeling] and selskabelige instinkter [social instincts]:

--,.....
---- ....
=
-tS!~~r --- .;;.:---....-,.----=--- ". - ---

repl", ood"ln01lnCl

-=-""--

~"*'

~

-

_ f_-=..,

-'--

selskabelige lnstlnkter

i:%7-~-

--;;"

""""'-=-

-e----~~

fig 2: The topic, “Social Instincts”, and the STM dashboard.
Two of the top-rated passages of Jacobsen’s translations of Darwin for this topic include:[9]
Social animals are partly impelled by a wish to aid the members of the same

A-973
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 219 of 245
Leonard and Tangherlini 11

community in a general manner, but more commonly to perform certain
definite actions. Man is impelled by the same general wish to aid his fellows,
but has few or no special instincts (Darwin 1871, 392).
I am aware that some persons maintain that actions performed impulsively…
do not come under the dominion of the moral sense, and cannot be called
moral… But it appears scarcely possible to draw any clear line of distinction
of this kind; though the distinction may be real. As far as exalted motives are
concerned, many instances have been recorded of barbarians, destitute of any
feeling of general benevolence towards mankind, and not guided by any
religious motive, who have deliberately as prisoners sacrificed their lives,
rather than betray their comrades; and surely their conduct ought to be
considered as moral (Darwin 1874, 96).
As hoped, the algorithm discovers a number of interesting texts that support the contention
that Darwin’s topics were influential outside of the natural sciences including several
intriguing examples from the intellectual press such as the monthly Det nye Aarhundrede (The
New Century).
In a reformist piece on the subject of “Det gældende Straffesystem” [The Current
Penal System], a largely forgotten yet at the time influential Police Inspector, August Goll
(1866-1936), laments the unfairness of Danish criminal law as “…truly a tragic conflict, in
which Society as the strongest crushes the weakest, without the slightest moral right to do
so—for in the zone of morality no dictate can apply” (Goll 1906, 409). A similar passage
appears in Kriminal-Antropologiske Studier over Danske Forbrydere (Criminal-Anthropological
Studies of Danish Criminals), in which the obscure physician and progressive prison
reformer, Christian Geill (1860-1938), opines that “For the sociological school [of thought],

A-974
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 220 of 245
Leonard and Tangherlini 12

criminality is only one of the many symptoms of social illnesses; it is this sickness itself
which must be attacked through treatment” (Geill 1906, 7). Although Goll and Geill are
essentially unknown in Danish intellectual circles today, their work was instrumental in
ushering in prison reforms at the start of the twentieth century, and their work on the rights
and the humane treatment of prisoners—moving away from a position that criminals were
born that way—still informs Danish theories of the prison today.
Although these first two passages are from a non-fiction work and an opinion
article—revealing that questions related to Darwin’s conception of “social instinct” had
broad appeal across many fields—similar passages also appear in literature. For example, in
Jakob Knudsen’s (1858-1917) novel Inger , a man asks the parish minister whether he
considers his affair with Inger to be dishonorable (æreløst). The minister responds:[10]
Yes, Ditlev, I must. And that is dishonorable you will notice more strongly
and clearly each day it continues unfortunately. Because it is society alone
that decides what is honor and what is shame. You have offended society’s
morals and laws, such as they are nowadays, and that is what counts (and
must count) with respect to honor and shame—no matter how good a
conscience you may have had in your own ignorance (Knudsen 1906, 253).
Popular (yet scandalous) at the time of its publication, Inger, which tells of a love triangle
between a woman, her husband and her live-in lover has, in later years, been consigned to
the Sea of the Great Unread. Despite the disappearance of all of these works from the
“domain expertise” of current scholars, STM “rediscovers” them. In each of these
passages—all chosen from a single year, 1906—Darwin’s thoughts on the tension between
human being and citizen, between the individual and society, is captured well.
A second topic, labeled “struggle for survival,” invokes words and phrases such as

A-975
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 221 of 245
Leonard and Tangherlini 13

fight one another, defense against enemies, fight against, weapon, fight, defense, rivals, strength and
occupation. The most saturated passage for this topic in the Darwinian texts is a description of
polygamous birds “furnished with special weapons for fighting with their rivals, namely
spurs, which can be used with fearful effect” (Darwin 1874, 311). Darwin nuances this
language of struggle in On the Origin of the Species by noting (in another highly-ranked passage):
I should premise that I use the term Struggle for Existence in a large and
metaphorical sense, including dependence of one being on another, and
including (which is more important) not only the life of the individual, but
success in leaving progeny. Two canine animals in a time of dearth, may be
truly said to struggle with each other which shall get food and live. But a
plant on the edge of a desert is said to struggle for life against the drought,
though more properly it should be said to be dependent on the moisture
(Darwin 1859, 50).
One of the most highly-ranked passages from literature published in 1906 is a paragraph
from historian Hans Thorvald Olrik’s biography of the twelfth-century archbishop Absalon
(Olrik 1909). Describing the development of a rebellion in Southern Sweden, Olrik writes:
In short, it was the earlier society, prehistoric society’s fight against the
innovations and transformations of the Valdemar era and this rupture
included the political, the religious and the social. Yet these counter-currents
against the ruling powers were so uneven at first they could not immediately
coalesce into a solid plan and clear desire. The Scanian Uprising was very
hesitant at first, the common people barely knew what they wanted
themselves, and threw themselves in a seemingly random fashion into the
struggle first against the state, then against the Church and finally against the

A-976
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 222 of 245
Leonard and Tangherlini 14

upper class. But during the course of these events, the streams find each
other, and finally the uprising becomes a foaming river, tearing into
everything along the way, so the strongest forces in the country would have
to come together in order to stem the danger (Olrik 1909, 46).
Olrik’s metaphor is based on nature, comparing a conflict in human interests to one of
geologic and hydrological forces. Here, Darwinian concepts of the “struggle for survival”
have been incorporated in early twentieth century historiography, a development that
Jacobsen and Brandes would likely have applauded. At the very least, this topic might be a
useful investigatory tool to more closely examine metaphors of naturalized conflict in both
history and fiction writing in early twentieth century Denmark.
Second Experiment: Missing Authors of the Modern Breakthrough
The naturalist turn in literary circles was a significant break—perhaps the most
significant break—in Danish literary history. Yet, for many years, the break was traced
almost exclusively in the work of the small number of authors that Brandes identified as the
men of the Modern Breakthrough (1883). As such, Danish literary history, and the impact of
the work of Darwin on the literary landscape, was largely constrained to a handful of
canonical authors. It was not until 1983, with Pil Dahlerup’s Det moderne gennembruds kvinder
[Women of the Modern Breakthrough], that women were included in the canon of the
Modern Breakthrough, and perhaps only begrudgingly so. Dahlerup’s book was more
important in that it challenged the general canonical premise of Nordic literary history: if we
missed all of these women authors and their quite interesting and engaging works, what else
were we missing?
In this second experiment, we approach this problem of the “Missing Authors of the
Modern Breakthrough.” To address it, we modeled representative work from Jacobsen’s

A-977
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 223 of 245
Leonard and Tangherlini 15

fiction and that of two other “Men of the Modern Breakthrough”, Sophus Schandorf and
Holger Drachman. This trawl line, tuned to the Modern Breakthrough as defined by Brandes
and expressed in the works of these three canonical authors, should catch passages from
other authors recognized as Modern Breakthrough authors; ideally, if one accepts Dahlerup’s
underlying premise that the seventy women whom she identified as having their literary
debut during the heyday of the Modern Breakthrough contributed to the contours of the
Breakthrough, STM should also place passages from their work among the results with high
topic saturation. A successful result would also include the identification of relatively
unknown authors or texts (and passages) among these highly-ranked search results.
The Modern Breakthrough, modeled at fifty topics, provides some interesting results
but, as with the other experiments, also brings to the fore the somewhat unpredictable
nature of the Google Books corpus—a fairly large number of indices, statistical compendia,
and catalogs tend to overload the topic models, returning these in very high ranked
positions. At fifty topics, this problem is somewhat easier to ignore, while at lower levels, the
initial rank list of “saturated” passages can at times be overwhelmed by these “junk fish.” A
refinement to our tool would allow the researcher to rapidly clean the target collection of
uninteresting results and rerun the algorithm in an iterative fashion. That said, the results of
modeling the Modern Breakthrough offers some interesting results.
One topic, focusing on a woman’s thoughts, uncovered several interesting passages
from a work by Magdalene Thoresen (1819-1903), a relatively obscure female writer
mentioned in Dahlerup’s work. Thoresen began her career as an author in the period
between the Golden Age of Danish Romaniticism and the Modern Breakthrough, with a
short story, “En Aften i Bergen” (1858). As she developed as an author, the relationship
between the sexes became one of her main themes, in line with the gender debate that was a

A-978
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 224 of 245
Leonard and Tangherlini 16

main focus of the Modern Breakthrough. Not surprisingly, the topic also captures passages
from several male Modern Breakthrough authors as well. Passages from Thoresen’s work,
Elvedrag og andre fortællinger (1893). are saturated with another topic as well, labeled “her self”
and constituted by words such as hende [her], hendes [hers], hendes fader [her father], hendes øjne
[her eyes]. The topic interestingly also captures passages from Bjørnstjerne Bjørnson,
Norway’s leading Romantic nationalist author, Evald Tang Kristensen’s collections of
legends (see below), and a tragedy by the Nobel prize-winning Modern Breakthrough author
Karl Gjellerup. A topic that quite by chance appears directly below this in our topic curation
browser—a topic related to “intelligence”—reveals numerous passages from Darwin (!) and
Gjellerup:

--

hendes

~over~

- -ned Qver::"-.,..

...

hen over

- 5elv .-_
~

0..- . . _

II

,, _ . - - ,

'--vlaunaen~ i""'g

l aftenens.::..
intelligens

~

.

-

personhghed
sprendte -

~
r cte
~s

1il.lskhed~n relle

altlEln sk bondepigedragt

nagle plenen
artrasvangre gjrering
lilbedelses v,rak

hreredragne
Ivnl"m"nrl

fig. 3: The topic “her self” and “intelligence” as seen in the topic curation interface.
Thoresen is not, however, the only woman writer that STM identifies.
Perhaps one of the least well-known, but fascinating female authorships, of the late
nineteenth century is that of Alfhilda Mechlenburg (1831-1908) (Dahlerup 1983, 148-151).
The daughter of an Army Captain, Alfhilda spent much of her youth in Sønderjylland along

A-979
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 225 of 245
Leonard and Tangherlini 17

the German border, but moved in her late teens to Norway. After the tragic death of her
husband and her child, she returned to Denmark where she began a writing career, a career
that her two younger sisters had already engaged. Mechlenburg was hardly an adherent of
the Modern Breakthrough ideals, but was rather initially caught up in a Romantic idealism
that, as with Bauditz’s neo-Biedermeier oeuvre, was extremely popular. In Mechlenburg’s
case, she was able to capture a very large portion of the largely urban, literate female reading
public even though she published under the male pseudonym Ivar Ring. By 1882,
Mechlenburg had managed to become one of the authors funded by the state budget, which
freed her up to write even more including her collection of short stories, I Vaar (1895). In a
somewhat hard to interpret topic that deals with men, little girls, god, black robes and
shouting, passages from this collection appear along with Wied’s Ungdomshistorier (1895),
while another topic related to longing, death and inheritance places passages from her work
not only alongside this work by Wied, but also Edvard Brandes’s three act play, Muhammed
(1895).
The list of late nineteenth century woman writers from whose works passages are
recognized as being allied with better known male writers from the Modern Breakthrough is
surprisingly large, and reveals the extent to which STM can be used to identify both authors
of interest but also passages of interest. Anna Erslev (1862-1919), another of the female
authors discussed by Dahlerup (1983, 400-420), appears most dramatically in a topic related
to delight and disagreement—an interesting juxtaposition that in some ways captures the
tensions that the Modern Breakthrough wanted to bring into art. Erslev’s lyrical “folk
historical” play about the ancient Danish king Valdemar was a bit of a departure from her
focus on children’s literature (a pedagogical endeavor that associates her with Carl Ewald
and his translation of the Grimms’ fairy tales, see below), yet aligned her with progressive

A-980
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 226 of 245
Leonard and Tangherlini 18

ideas about education that were catching on in Denmark. Perhaps more interesting is that
STM’s passage identification places her work close to that of Amalie Skram, long considered
to be the leading, progressive feminist voice in late nineteenth century Scandinavian
literature.
It is not only the relatively unknown female authors whose works are caught by the
Modern Breakthrough trawl line. Rehearsing all of the intriguing and relatively unknown
passages that (a) exhibit a degree of latent similarity with the main works of the main
Modern Breakthrough authors and (b) exhibit that same similarity with known but less
canonical works would be an exhausting exercise. Nevertheless it is worth noting that many
of the caught passages come from authors whose work was later disregarded as not being
central to the Modern Breakthrough or was otherwise ignored as it complicated the picture
of the period. Vilhelm Østergaard’s novel, Danmarks Vovehals (1894), a historical novel about
Peder Skram, a nearly legendary sixteenth century Danish military adventurer, is clearly one
such work. Interestingly, Østergaard played an important role as a consultant at Gyldendal,
editing the “Gyldendal library” of Danish literature (175 volumes) and this broad literary
exposure to the leading authors of the nineteenth century emerges in his picaresque
engagement with different styles, his debut collection of short stories echoing the far more
famous H. C. Andersen, his later works picking up on themes from Schandorf, while his
theatrical work was largely comprised of dramatizations of several of Sophus Bauditz’s
novels. Østergaard’s novel about Skram stands as a weak echo of J.P. Jacobsen’s Marie
Grubbe and, like the rest of his authorship, while popular in its time, never broke through
into the canon.
The Modern Breakthrough is far too central a phenomenon in Nordic literary history
to be able to explore its complexities here. Nevertheless, STM offers a novel method for

A-981
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 227 of 245
Leonard and Tangherlini 19

finding evidence to help explore these complexities. Indeed, the discovery of interesting
intersections and juxtapositions of not only authorships but also individual passages is a key
advantage to this method over more standard search methods. Adding more authors to the
mix, particularly given STM’s uncanny ability to snag unknown or forgotten ones, is a key
element in the struggle for increased recall in Humanities research. While STM will not
supplant analysis and hard work in the archives, it does offer the opportunity to develop a
more sophisticated map of the intersections of authors, known and unknown, during this
period of considerable artistic upheaval in Denmark and the Nordic countries.
Third Experiment: Folklore, Regional Literature and the “Folk Breakthrough”
Most casual observers of Danish literature are aware of the central place that Hans
Christian Andersen (1805-1875) occupies in Nordic literary history, a reputation solidified by
the international success of his “Fairy Tales.” Yet H.C. Andersen was hardly the only Danish
author to engage folkloric themes in his literary oeuvre, and the impact of folklore on the
literary landscape extended far beyond the limited realm of Andersen’s authorship. Folklore
collection became an important endeavor in the early nineteenth century in the aftermath of
the disastrous Danish alliance with Napoleon and the subsequent national bankruptcy in
1814. As with many other European countries, folklore collection was closely tied to national
Romantic movements, and this is perhaps best exemplified in the writings of Svend
Grundtvig (1824-1883), the son of Denmark’s most famous national Romantic theologian.
Grundtvig’s entreaties to Danish schoolteachers and local historians to collect the “national
treasure” of ballads as a reflection of the unique poetic creativity of the Danish folk
motivated a young schoolteacher, Evald Tang Kristensen, to begin his collecting in 1864
(Grundtvig 1843). Over the course of the next six decades, Tang Kristensen crisscrossed the
Danish countryside, amassing a folklore collection of more than 24,000 manuscript pages.

A-982
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 228 of 245
Leonard and Tangherlini 20

As Tang Kristensen became increasingly well-known among his fellow
schoolteachers and local historians, his collection became both a model for other collections
of largely local storytelling and an inspiration for the burgeoning interest among the small yet
active rural intelligentsia in the study of dialects and everyday life in the countryside. This
group spearheaded a distinctive and important development in Danish literary history that
has been coined the “Folk Breakthrough”, a clear response to the pendulum swing toward
Symbolism that followed in the aftermath of the Modern Breakthrough, yet one that resisted
the pessimism of the Modern Breakthrough and the decadence of the fin-de-siècle Danish
novel. The Folk Breakthrough was characterized by its emphasis on region over nation, the
rural over the urban; authors of this movement have often been characterized as members of
the turn toward “Hjemstavnslitteratur” [Regional literature], a genre that became increasingly
popular in the early decades of the twentieth century.
Unlike the Modern Breakthrough that looked to Brandes as a unifying, theoretical
voice, the Folk Breakthrough had no main intellectual anchor figure. Jeppe Aakjær, who
learned about folklore and Jutlandic dialects directly from Tang Kristensen, was perhaps one
of the most articulate and best recognized of these emerging authors (Tangherlini 1999). He
traced many of his thematic influences not only to Tang Kristensen and the Jutlandic
peasantry, but also to Steen Steensen Blicher. Somewhat confusingly, Blicher is generally
considered to be among Denmark’s foremost Romantic poets while, at the same time, one
of Denmark’s earliest Naturalists (Aakjær 1903-1904; Brix 1916). This shifting interpretation
of Blicher’s position in Danish literary history is not only representative of the unsteady
ground that marks the late nineteenth century in Danish literature but also of the inadequacy
of models that insist on a single assignation for an authorship. STM helps reveal that not all
engagements with folklore, the countryside and everyday rural life were nostalgic examples

A-983
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 229 of 245
Leonard and Tangherlini 21

of Biedermeier literature (a rural idyllic representation of country life resting on a bed of
Romanticism), unapologetic Romantic peons to the Nation, or realistic engagements with
the natural. Indeed, in later years, Johannes V. Jensen (1873-1950) with his influential
Himmerlandshistorier (1898-1910) was held up as the leading figure of the Hjemstavnslitteratur,
thereby again revealing the profoundly fractured nature of the Folk Breakthrough.
Rural motifs are remarkably common in Danish literature from the nineteenth and
early to mid twentieth centuries. While passages from major works, such as Herman Bang’s
Ved Vejen and J.P. Jacobsen’s Marie Grubbe, are easy enough to discover, largely because they
form part of the canon, discovering lesser known works, or discovering the intersection of
folkloric topics with the broader corpus of Danish literature, is considerably more difficult.
Despite this difficulty, discovering a broad range of passages depicting everyday rural life
may allow us to better understand the complex and at times contradictory reliance on the
rural in Danish fiction. Importantly, the goal is not to discover retellings of fairy tales or
legends.[11] Rather, the underlying idea is that by modeling a comprehensive collection of
folklore, the general “feel” of rural life embedded in the folklore can be used to discover
literary works that attempt to capture that same “feel.” An ideal series of results would
capture not only other collections of folklore but also literary works that engage the rural,
from the conservative and Romantic Biedermeier literature of the mid-1800s, to the
Naturalist engagement with the rural in the Modern Breakthrough, to the emergence of rural
regional literature from the Folk Breakthrough.
To devise our folklore trawl line, we modeled ~34,000 legends from Tang
Kristensen’s collections (Tang Kristensen 1892-1901; 1928-1939), deriving 100 topics from
the collection. Not surprisingly, when we set out on the Sea of the Great Unread with this
line, we caught passages from several other collections of folklore, including printed versions

A-984
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 230 of 245
Leonard and Tangherlini 22

of Tang Kristensen’s folklore collections, other volumes of collected folklore, and literary
reworkings of fairy tales. More importantly, we discovered a very large number of passages
from literary works, known and unknown, that were closely related to these folkloric topics.
An interesting find that illustrates the intersection between the folkloric and the
literary is a passage from Herman Bang’s Haabløse Slægter (1880). For a topic we labeled
“death and churchyards,” the following passage from Bang appears:
Yesterday, when I saw him, I came to think—God knows how—about a
starving dog, no, not starving, but a miserable, tired, emaciated dog that lies
still, eyes heavy and dies on his master’s grave. And I don’t know, but now I
find this picture striking: thought, the controlling, the dominant forces in him
have died, and now he spiritually starves to death on his dead master’s grave
(Bang 1880, 319).
While considerably more poetic and certainly more overtly pessimistic than most legends
about cemeteries, Bang captures well the uncanny, perhaps supernatural, connection in folk
belief between dogs and their masters after death. Another topic that we labeled “Shooting
and Witches,” generated by words such as skyde [shoot], jagt [hunt], bøssen [rifle], hare [hare],
captures passages from works as disparate as a chorographic work on Vendsyssel (a northern
Jutlandic region) and passages from Blicher’s collected short stories (Blicher 1907). Other
passages that appeared on the line included ones from works by Holger Drachman, J.P.
Jacobsen, the Norwegian Bjørnstjerne Bjørnson, and several other well-known authors.
Similarly, a topic on horses and wagons—a rural topic if ever there was one, confirmed by its
capture of passages from Jeppe Aakjær’s Vadmels folk (1919)—discovered several passages by
an interesting, yet somewhat obscure, hjemstavnslitteratur author, Jakob Nielsen (1830-1901).
Finally, another typical rural topic which we labeled “the minister,” defined by words such as

A-985
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 231 of 245
Leonard and Tangherlini 23

præst [minister], præstegården [parsonage], kjole [robes], krave [collar] and genganger [revenant],
not only discovers passages from Aakjær’s biographical work on Blicher (1904), but also
passages from one of the most important (and therefore most spectacularly forgotten) neoBiedermeier short-story writers, Sophus Bauditz (1850-1915). Bauditz’s fiction sold tens of
thousands of copies at a time when most Danish literature only sold in the low thousands,
and his audience was comprised largely of the emerging urban middle classes. Bauditz, in the
discovered passage from this novel, masterfully captures the urban middle class nostalgia for
an idyllic rural past that had never actually existed. In contrast to the reactionary Bauditz, the
topic also captured passages from Carl Ewald’s starkly realistic historical novel, Den største i
landet (1905). Ewald, whose ideological orientation was diametrically opposed to that of
Bauditz, was no stranger to folklore and the rural, having translated Grimm’s fairy tales and
rewritten Danish fairy tales and legends, in the belief that these stories could teach children
Darwin’s ideas about nature and evolutionary forces.
In a series of explorations focused on a twenty-year period that effectively covers the
main period of the Folk Breakthrough (1890-1910), the trawl discovers a remarkable series
of passages and works from largely unknown authors. So, for example, the topic, “Wild
Hunt,” identifies a passage from Gustav Wied’s Barnlige Sjæle (1893) in which Wied writes: “I
samme øjeblik, han vendte sig om, gik der en Gysen igemiem mig, en Gysen af Uhygge og
Medfølelse!” [At the same moment that he turned around, a shiver went up my spine, a
shiver of horror and compassion], capturing the eerie response that witnesses report in
legend’s about encountering the wild hunt. Wied is often considered to be a marginal figure
in the Modern Breakthrough, his authorship marked both by social critique and an emphasis
on rural motifs; it is thus fitting that even his relatively unknown works are caught on the
trawl line. The topic of reading the Danish black book, Cyprianus, provides a series of equally

A-986
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 232 of 245
Leonard and Tangherlini 24

interesting results, retrieving not only passages from Alfred Lehman’s historical work, Overtro
og Trolddom fra de ældste Tider til vore Dage (1896), but also from Bang’s Udvalgte Fortællinger
(1899), Aakjær’s short story “Hædersgaven” (1915), and Magdalene Thoresen’s (1819-1903)
lesser known short story, “Studenten” (1863). Perhaps most interesting is the discovery of a
passage from the long forgotten work Af Kains Slægt: En nutids fortælling (1899) by Axel
Thomsen (1875-1951), one of the most obscure writers of the Folk Breakthrough. The novel
was originally positively refereed for a press by the famous Modern Breakthrough author
Henrik Pontoppidan, but was essentially forgotten after its publication. Thomsen is
interesting precisely because he is no longer known, absent from most standard literary
histories and biographical encyclopedias, despite publishing sixteen works, most between
1919 and 1927, many of which include folkloric themes and descriptions of rural life.[12]
Modeling the folklore corpus is an excellent method for discovering literary passages
that deliberately attempt to capture aspects of peasant life even if the authors come from
wildly divergent ideological positions—this type of recall is difficult to reproduce in
traditional searches as those searches inherit the biases of the researcher. The relative lack of
bias in the topic modeling approach, conversely, produces intriguing results that include
passages from authors who reflect a broad range on the ideological spectrum. So, for
example, passages from Inger, the novel by Jacob Knudsen mentioned earlier, appear in a
topic related to serving maids, while a topic related to shooting identifies a passage from
Otto Rung’s early novel, Sidste Kamp. Although Rung is more known for his detective fiction
set largely in Copenhagen—and thus not a likely author to look to for descriptions of
Danish rural life—the largely ignored Sidste Kamp does indeed include such descriptions.
Similarly, a topic labeled “serpents,” discovers an unusual work on the animal world of the
fairy tale by yet another long forgotten schoolteacher authors of the Folk Breakthrough,

A-987
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 233 of 245
Leonard and Tangherlini 25

Ingvor Bondesen (1844-1911) [figure 4]:

·-.- --

.!!:'It .lo,~_

.:::-lindorm'Vl"_
Hndormen

--.

-

-

- marams.!:':!!-

............."....

-hale n mJnton: : ~-.

•

fig. 4: The topic “serpents” and an identified passage in the forgotten work by
Bondesen.
Unexpected—and thus welcome—results are the norm rather than the exception in
STM.[13]
Conclusion
Literary history has a tendency to draw lines in the sand, distinguishing the
characteristics of one movement from another. As a result, literary movements are often
conceptualized in the context of sharp breaks, and authorships are often parceled out as
belonging to one movement or another. In our preliminary work described above, the
inadequacy of these distinctions becomes increasingly apparent. Although the polarizations
of “movements” might apply thematically or even stylistically to those “defining members”
of a school or a movement, the vast majority of artistic expression falls somewhere in
between. Similarly, clearly demarcated lines of distinction—Author X is a Romantic, Author
Y is a Naturalist, and so on—do not hold up to the scrutiny of hundreds or thousands of
examples. Rather, what becomes apparent from reading (or at least modeling) the Sea of the
Great Unread is that literary movements and counter movements are characterized by a

A-988
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 234 of 245
Leonard and Tangherlini 26

great deal of borrowing, overlap and intersection.
STM provides interesting insight—and the evidence to support that insight—into the
complexities of even relatively small literatures. In the past, thematic research questions were
often driven by a reading of the canon—for instance, how does Jacobsen characterize the
fight for survival? Similarly, historical research questions often built outwards from a center
of presumed communities of influence—how did the regional literature movement of the
last years of the nineteenth century and the early twentieth century recapitulate the
Naturalism of the Modern Breakthrough while incorporating aspects of nostalgia while
breaking with the Symbolists? STM allows for both of these approaches, while casting a
much wider net. Now, given a sub-corpus, be it the works of Darwin (hypothesized to have
significant influence on the Modern Breakthrough writers), the works of Jacobsen,
Schandorf and Drachman (hypothesized to be representative of the Modern Breakthrough),
or a large collection of Danish folklore (hypothesized to be inspirational for the Folk
Breakthrough), the researcher can discover passages that can help support or broaden their
understanding of these movements. Reversing the approach helps to illuminate another
important aspect of STM. By curating the topics modeled on the sub corpus, the researcher
becomes aware of topics that might now otherwise have informed the research. If the
algorithm had never suggested a topic, would one ever derive a series keywords that link
together material as disparate as criminology journals, university speeches and a novel
written by a priest? This type of recall—and the intellectual value added by this recall—can
only help broaden our understanding of the complexity of literary history.
Ultimately the researcher is responsible for fashioning raw bits of textual evidence
into a convincing argument that can stand on its own merits. In the past, Humanities
research has largely relied on arbitrary, albeit directed, methods of discovery: reading the

A-989
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 235 of 245
Leonard and Tangherlini 27

scholarly literature on the subject, combing through secondary sources, asking colleagues for
advice, relying on past experience and serendipity. Individual authors often escaped inclusion
in the canon (however defined), and as the years passed, the chances of their prose emerging
from darkened library shelves grew slimmer. With the emergence of larger and increasingly
comprehensive collections of machine-actionable texts, researchers can now access many
more works than before. At the same time, the large number of texts speaks of the need for
flexible finding aids. STM allows scholars to take advantage of their hard won domain
expertise and the long history of scholarship that exists in most fields, while wedding this
existing knowledge to methods for rapidly discovering potentially unknown or inadvertently
overlooked passages. As we illustrate in the preliminary experiments above, the results are
complicated and subject to interpretation and thus require the input of domain experts. The
experiments do reveal the ability of STM to increase recall for any given corpus without
sacrificing precision (indeed, the sub-corpus selection is based on the precise searches of
years past). Yet unlike keyword searches, these searches are easily reproduced. Consequently,
Humanities corpus discovery moves away from being a game of “gotcha” or one based on
access to one that takes advantage of domain expertise and the increased accessibility of
resources in a digital age.
In his 1871 essay “Menneskeslægtens Oprindelse” (The Origin of the Family of
Man), J. P. Jacobsen claimed,
If one accepts the teachings of evolution... then Man will no longer regard
himself as an exception from the laws of nature, but will begin notice these
rules in his own actions and thoughts, and strive to place his own life in
congruence with the laws of nature (Jacobsen 1871b).[14]
Jacobsen’s proposal that the laws of nature necessarily organize human behavior and society

A-990
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 236 of 245
Leonard and Tangherlini 28

given Man’s position as an inextricable part of nature had a significant impact on the Nordic
literary realm. But how far across the literary and intellectual realm did this influence reach,
and how far up into the twentieth century did these ideas echo? Are there authors—such as
the women identified by Dahlerup—who inflected these ideas in their authorship but for
various reasons were ignored or deliberately left out of the broader canon? Similarly, in the
aftermath of the Modern Breakthrough, as different literary movements took root, and the
access to the literary world became democratized, is it possible to discover commonalities
across the corpus related to a particular field such as folklore and normal people’s
descriptions of their everyday life? These questions are hardly unique to Nordic literature,
but rather address substantive issues confronting Humanities scholars as access to very large
corpora of digital texts becomes commonplace. STM can now be added to the fishing tackle
of Humanities scholars as they head out onto the Sea of the Great Unread.
______________________
Notes
Funding for this work was provided through a generous grant from the Google Books
Humanities Grant program. We would like to thank Jon Orwant at Google for his continued
support of our work. We would also like to thank our colleagues David Blei and David
Mimno for their comments and helpful suggestions regarding our work, particularly the
implementation of LDA. Portions of this work have been presented at the annual
conferences of the American Folklore Society (2011) and the Society for the Advancement
of Scandinavian Study (2011 and 2012).
[1] Google’s n-gram browser provides a simple version of this type of modeling—while it is
fun to play with, it has very limited usefulness in the study of literature (Michel et al, 2011).

A-991
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 237 of 245
Leonard and Tangherlini 29

[2] “Largely arbitrary” as matters of reception, sales, publication, circulation, critical reviews
and so on contribute significantly to the recognition of a literary work as exceptional. Those
works that have “staying power”—that are able to engage critics for a considerable period of
time—are those that enter the canon. At the same time, despite the impression of
immutability, the canon often changes radically over time so that unknown works can
suddenly become known (and canonical), while well known (and canonical) works can
suddenly fall out of favor and disappear from the canon altogether. Methods for predicting
works that are likely to enter the canon would be an intriguing addition to the tools available
for Humanities scholars working with these large and dynamic digital corpora.
[3] Extending this admittedly forced fishing metaphor, one can equate earlier, canonical
approaches to search as fly-fishing, where the fisherman deliberately selects lures that will
only entice fish that he already knows are in the river. Conversely, nonselective search can be
likened to tossing a stick of dynamite into a pond—all things that were in the pond float to
the surface, to be later sorted through. Our approach intends to lie somewhere in between.
[4] As we are not applied mathematicians, we allow others to explain the statistical methods
that undergird this approach (Ng, Blei and Jordan 2003).
[5] The STM trawl lines uses as hooks a measurement of topic saturation. The topic saturation
measurement algorithm calculates the degree of “saturation” (or match) between a sub-corpus
topic and a text chunk in the unlabeled corpus and returns a researcher-defined set of the
highest ranked passages (for these experiments, this limit was set at 200).
[6] Currently, topic model curation is done via a different interface.
[7] The Danish reads, “Vi ombytte Underets gamle Poesi med Lovbestemthedens nye Poesi,
vi byte en vilkårlig, overnaturlig personlig Styrelse med en klar Naturordning.”

A-992
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 238 of 245
Leonard and Tangherlini 30

[8] Using paragraphs as text chunks may not be optimal. Yet, it does recognize that, for most
writers, paragraphs tend to focus on a single topic.
[9] These are Darwin’s original English, the Danish translation rendered by JP Jacobsen in
1875 read: “Selskabelige Dyr blive tildels drevne af et Ønske om at hjælpe Medlemmerne af
samme Selskab i al Alminde lighed, men hyppigere til at udføre visse bestemte Hand linger.
Mennesket ledes af det samme almindelige Ønske om at hjælpe sine Medmennesker, men
har få eller ingen særegne Instinkter.” Jacobsen’s 1874 translation of the second quote reads,
“Jeg veed vel at Nogle hævde, at Handlinger, der udføres ifølge en øjeblikkelig Drift, således
som i det ovenfor nævnte Tilfælde, ikke have Noget med den moralske Følelse at gjøre og
ikke kunne kaldes moralske... Men det synes neppe muligt at drage nogen skarp
Grændselinie her, omendskjøndt der jo i Virkeligheden nok er nogen Forskjel. Hvad disse
ophøjede Motiver angåer, så har man mange Exempler på, at Vilde, der mangle enhver
Følelse af almen Menneskekjærlighed og som ikke ledes af nogen religiøs Bevæggrund, at de,
når de ere blevne tagne tilfange, med Overlæg have offret deres Liv hellere end at forråde
deres Kammerater; og denne deres Opførsel må ganske vist ansees for moralsk.”
[10] The Danish reads, “Ja, Ditlev, det er jeg nødt til. Og at det er æreløst, det vil I desværre
få stærkere og tydeligere at mærke med hver Dag, der går. Thi det er Samfundet, der alene
bestemmer, hvad der er Ære, og hvad der er Skam. I har krænket Samfundets Moral og
Love, sådan som de nu er; og det er det afgjørende, og må være det, med Hensyn til Ære og
Skam, — i hvor god en Samvittighed I end måskee i jeres Uvidenhed kan have haft.”
[11] In other work, we show how a multi-modal network model can be used to discover
improperly classified documents in a large folklore collection (Abello, Broadwell, Tangherlini
2012).

A-993
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 239 of 245
Leonard and Tangherlini 31

[12] He is included in Th. Lind’s Gyldendals forfatterleksikon (1914) and the membership rolls
of the Dansk forfatterforening [Association of Danish Authors] (1919), and in Dansk skønlitterært
forfatterleksikon 1900-1950 (Dahl and Engelstoft 1959-1964).
[13] Granted, there are some refinements that can be made to our net. Currently, the “Sea of
the Great Unread” includes works from many disciplines, and is not solely a collection of
unread fiction. Unfortunately, the metadata included with many “big data” collections is
insufficient to make a reasonable sort on fiction and non-fiction. Consequently, in our
current work, we have left the major collection unfiltered—this results in the “capture” of
many works that need to be thrown back.
[14] The Danish reads: “Antager man Afstamningslæren, saa vil Mennesket... ikke længere
betragte sig som en Undtagelse fra Naturlovene, men vil endog begynde at se efter det
lovmæssige i sine egne Handlinger og Tanker og stræbe efter at faa sit eget Liv i
Overensstemmese med Naturlovene” (Jacobsen 1871b, 121).

A-994
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 240 of 245
Leonard and Tangherlini 32

Works Cited
Aakjær, Jeppe. 1915. “Hædersgaven.” Hafnias Almanak, 48.
Aakjær, Jeppe. 1919. Vadmels folk. Copenhagen: Gyldendal.
Aakjær, Jeppe. 1903-1904. Steen Steensen Blichers livs-tragedie i breve og aktstykker. 3 volumes.
Copenhagen: Gyldendal.
Abello, James, Peter Broadwell, and Timothy R. Tangherlini. 2012. “Computational
Folkloristics.” CACM 55(7): 60-70.
Ballard, Martha. 1795. Diary Entry for February 7 1795. Reproduced in Martha Ballard’s Diary
Online. http://dohistory.org/diary/1795/02/17950207_txt.html?d=17950207
Bang, Herman. 1880. Haabløse Slægter. Copenhagen: Schubotheske forlag.
Bang, Herman. 1899. Udvalgte Fortællinger. Copenhagen: Schubotheske forlag.
Bauditz, Sophus. 1906. Krøniker fra Garnisonsbyen. Copenhagen: Gyldendal.
Blei, David M., Ng, A.Y. and Jordan, Michael I. 2003. “Latent Dirichlet Allocation.” Journal
of Machine Learning Research 3, 993-1022.
Blevins, Cameron. 2010. “Topic Modeling Martha Ballard’s Diary”. historying.
http://historying.org/2010/04/01/topic-modeling-martha-ballards-diary/
Blicher, Steen Steensen. 1907. Samlede noveller og skitser. Copenhagen: Nordisk forlag.
Bondesen, Ingvor. 1887. Æventyrets dyreverden. Copenhagen: C.A. Reitzel.
Brandes, Edvard. 1895. Muhammed. Copenhagen: P.G. Philipsens Forlag.
Brandes, Georg. 1883. Det moderne Gennembruds Mænd. En række portrætter. Copenhagen:
Gyldendal.
Brix, Hans. 1916. Blicher-studier. Copenhagen: Gyldendal.
Bugge, Sophus. 1907. Populær-videnskabelige foredrag, efterladte arbeider. Kristiania (Oslo):
Aschehaug.

A-995
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 241 of 245
Leonard and Tangherlini 33

Clasen, Mathias, Stine Slot Grumsen, Hans Henrik Hjermitslev and Peter C. Kjærgaard. 2012
forthcoming. “Translation and Transition: The Danish Literary Response to Darwin.”
In, The Cultural Reception of Charles Darwin in Europe, vol. 3. Edited by Thomas F. Glick
and Elinor Shaffer. London and New York: Continuum.
Dahl, Svend and Povl Engelstoft, ed. 1959-64. Dansk skønlitterært forfatterleksikon 1900-1950.
Copenhagen: Grønholt Pedersen.
Dahlerup, Pil. 1983. Det moderne gennembruds kvinder. Copenhagen: Gyldendal.
Dansk forfatterforening 1894-1919. 1919. Copenhagen: Gyldendal.
Darwin, Charles. 1859. On the origin of species. London: John Murray.
Darwin, Charles. 1871. The Descent of Man. Vol.1. London: Clowes.
Darwin, Charles. 1872. The Descent of Man. Vol.2. London: Clowes.
Erlsev, Anna. 1890. Kong Valdemar. Copenhagen: Schubotheske forlag.
Ewald, Carl. 1905. Den største i landet. Copenhagen: Gyldendal.
Fahl, Laurids, ed. 2008. “Jakob Knudsen.” In Arkiv for Dansk Litteratur. Copenhagen: Det
Danske Sprog- og Litteraturselskab
Geill, Christian. 1906. Kriminal-Antropologiske Studier over Danske Forbrydere. Copenhagen: Jacob
Lunds Medicinske Boghandel.
Goll, August. 1906. “Det gældende Straffesystem. En Tugthusfanges Kritik.” Det nye
Aarhundrede 3, 409-422.
Grumsen, Stine. 2009. “Den stærkeste overleverer: Et studie af en litteraturhistorisk myte
om darwinismen i Danmark.” Slagmark 54, 119-130.
Grundtvig, Svend. 1843. “Om Kæmpeviserne, til danske Mænd og Qvinder.” Dansk
Folkeblad.
Hjermitslev, Hans Henrik. 2009. Debating Darwinism in Denmark, 1859-1920. Ph.D. thesis,

A-996
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 242 of 245
Leonard and Tangherlini 34

Department of Science Studies, Aarhus University
Hjermitslev, Hans Henrik. 2010. “Danes Commemorating Darwin: Apes and Evolution at
the 1909 Anniversary.” Annals of Science 67, 485-525.
Jacobsen, Jens Peter. 1871a. “Darwins Theori.” Nyt dansk Maanedsskrift 1, 283-302 and 394419.
Jacobsen, Jens Peter. 1871b. “Menneskeslægtens Oprindelse.” Nyt Dansk Maanedskrift 2, 97122.
Jacobsen, Jens Peter, trans. 1872. Om Arternes Oprindelse ved Kvalitetsvalg eller ved de heldigst stillede
Formers Sejr i Kampen for Tilværelsen. Copenhagen: Gyldendal
Jacobsen, Jens Peter, trans. 1874. Menneskets Afstamning og Parringsvalget (Vol. 1). Copenhagen:
Gyldendal
Jacobsen, Jens Peter, trans. 1875. Menneskets Afstamning og Parringsvalget (Vol. 2). Copenhagen:
GyldendalJacobsen, Jens Peter. 1891. “Darwins Theori.” Nyt dansk Maanedsskrift 1,
283-302 and 394-419.
Jensen, Johannes V. 1898-1910. Himmerlandshistorier. Copenhagen: Gyldendal.
Kjærgaard, Peter and Niels Henrik Gregersen. 2006. “Darwinism comes to Denmark: The
Early Danish Reception of Charles Darwin’s Origin of Species.”. Ideas in History 1,
151-75.
Kjærgaard, Peter, Niels Henrik Gregersen and Hans Henrik Hjermitslev. 2008. “Darwinizing
the Danes, 1859-1909.” In, The Reception of Charles Darwin in Europe. Edited by EveMarie Engels and Thomas F. Glick. Pp. 146-155. London and New York:
Continuum.
Knudsen, Jakob. 1906. Inger. Copenhagen: Gyldendal.
Lehman, Alfred. 1896. Overtro og Trolddom fra de ældste Tider til vore Dage. Copenhagen: J.

A-997
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 243 of 245
Leonard and Tangherlini 35

Frimodts Forlag.
Lind, Th. 1914. Gyldendals forfatterleksikon. Copenhagen: Gyldendal.
Mechlenburg, Alfhilda. 1895. I Vaar. Copenhagen: Schubotheske forlag.
Michel, Jean Baptiste, Yuan Kui Shen, Aviva Presser Aidan, Adrian Veres, Matthew K. Gray,
The Google Books Team, Joseph P. Pickett, Dale Hoiberg, Dan Clancy, Peter
Norvig, Jon Orwant, Steven Pinker, Martin A. Nowak, and Erez Lieberman Aiden.
2011. “Quantitative Analysis of Culture Using Millions of Digitized Books.” Science
331(6014): 176-182.
Moretti, Franco. 2000. “The Slaughterhouse of Literature.” Modern Language Quarterly 61.1,
207-227.
McCallum, Andrew K. 2002. “MALLET: A Machine Learning for Language Toolkit.”
http://mallet.cs.umass.edu
Olrik, Hans Thorvald. 1908. Absalon. Copenhagen: Schubotheske forlag.
Tang Kristensen, Evald. 1892-1901. Danske sagn som de har lydt i folkemunde. Copenhagen:
Gyldendal.
Tang Kristensen, Evald. 1928-1939. Danske sagn som de har lydt i folkemunde. Ny række.
Copenhagen: Woels forlag.
Tangherlini, Timothy R. 1999. “Jeppe Aakjær.” In, Twentieth Century Danish Literature:
Dictionary of Literary Biography, vol. 214. Edited by Marianne Stecher-Hansen. Pp. 3-13.
Columbia, S.C.: Bruccoli Clark Layman, Inc.
Thomsen, Axel. 1899. Af Kains Slægt: En nutids fortælling. Copenhagen: Schubotheske forlag.
Thoresen, Magdalene. 1858. “En Aften i Bergen.” Reprinted in, Fortællinger. Copenhagen:
Gyldendal, 1863.
Thoresen, Magdalene. 1863. “Studenten.” In, Fortællinger. Copenhagen: Gyldendal.

A-998
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 244 of 245
Leonard and Tangherlini 36

Thoresen, Magdalene. 1893. Elvedrag og andre fortællinger. Copenhagen: Gyldendal.
Wied, Gustav. 1893. Barnlige Sjæle. Copenhagen: Jacob H. Mansas forlag.
Wied, Gustav. 1895. Ungdomshistorier. Copenhagen: P.G. Philipsens forlag.
Østergaard. Vilhelm. 1894. Danmarks Vovehals. Copenhagen: Gyldendal.

A-999
Case 1:11-cv-06351-HB Document 111-1

Filed 06/29/12 Page 245 of 245
Leonard and Tangherlini 37

Appendix: Technical Considerations
Danish orthography was in flux from the 1870s through the spelling reform of 1948.
In the closing decades of the nineteenth century, there is a gradual shift from using the
double-a to the a-ring (for example from haar to hår). Doubled soft vowels are reduced to
single vowels (veed to ved, riig to rig), and the letter j is dropped following k and g before e, ø,
and æ (kjær to kær). Though these spelling changes often affect only unimportant words
(prepositions such as paa/på, “upon”), we have normalized these variations in order to
extract as much usable information from the texts as possible. We also eliminated some
texts that were improperly recognized by Google’s OCR apparatus—many books published
in Denmark during this period were set in Fraktur (or Blackletter) type, mirroring German
practice. Although some of these texts were parsed correctly with a Fraktur-specific OCR
module, others clearly were processed by software expecting Latin letters with predictably
poor results. Additional preprocessing included removing hyphens at the end of lines that
divided words, and “chunking” the literary texts into rough paragraphs using a regular
expression. Though imperfect, these steps were necessary to provide consistent, granular
units of text.
The “STM dashboard” presented in some of the screenshots in this paper is a
prototype. It visualizes output from the Mallet machine-learning toolkit (McCallum 2002).
For the first and third experiments, we somewhat arbitrarily set the number of topics at one
hundred; for the second experiment, we set the number of topics at fifty. Future versions of
this tool will allow the researcher to generate topics at numerous levels of granularity, with a
concomitant increase in the recall of searches based on those various topics.

A-1000
Case 1:11-cv-06351-HB Document 113

Filed 06/29/12 Page 1 of 14

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.

THE LIBRARIES’ STATEMENT OF MATERIAL FACTS
IN SUPPORT OF THEIR
MOTION FOR SUMMARY JUDGMENT
ON FAIR USE AND LACK OF INFRINGEMENT
UNDER SECTION 106 OF THE COPYRIGHT ACT

A-1001
Case 1:11-cv-06351-HB Document 113

Filed 06/29/12 Page 2 of 14

Pursuant to Rule 56.1 of the Local Rules of the United States District Courts for the
Southern and Eastern Districts of New York, the Defendants in the above captioned action (the
“Libraries”) respectfully submit, in connection with their motion for summary judgment on fair
use and lack of infringement under Section 106 of the Copyright Act, the following statement of
material facts as to which there is no genuine issue to be tried.
The Core Functions of Academic Libraries
1.

Academic libraries buy works for academic and scholarly pursuits. (June 28, 2012

Declaration of John Wilkin (“Wilkin Decl.”) ¶ 11.)
2.

Academic libraries curate, maintain, and preserve works in their collections. (Id.)

3.

Academic libraries help scholars and students identify works pertinent to their

pursuits. (Id.)
4.

Academic libraries make works within their collections available and accessible

consistent with applicable law. (Id.)
5.

The Libraries are non-profit educational institutions. (Id. ¶¶ 8, 55, Ex. B.)
Acquisition of Works by the Libraries

6.

Academic libraries acquire works to satisfy anticipated future demand by their

patrons. (Id. ¶¶ 13, 17–19, 21.)
7.

When there is increased demand for a particular work, academic libraries will try

to purchase additional copies of that work. (Id. ¶ 13.)
8.

Each year the Libraries spend tens millions of dollars acquiring new works. (Id. ¶

14.)

2
US2008 3631589

A-1002
Case 1:11-cv-06351-HB Document 113

9.

Filed 06/29/12 Page 3 of 14

Most works go out of print after the initial print run and once that print run is sold

out, it can be difficult if not impossible for libraries to obtain additional copies of the work. (Id.
¶¶ 20–21.)
Deterioration of Works in the Libraries’ Collections
10.

Books, in their physical form, are inherently subject to damage, deterioration and

loss. (Id. ¶ 22.)
11.

Books published between 1850 and 1990 are particularly at risk of damage,

deterioration and loss because books published during this time period were generally published
on paper with high acid content. (Id.)
12.

Paper with high acid content degrades far more quickly than paper with low acid

content because the fibers that comprise paper degrade when acid meets the moisture in the air.
(Id. ¶ 23.)
13.

As of 2004, the University of Michigan library (the “UM Library”) estimated that

about half of its collection—approximately 3.5 million books—was printed on paper with high
acid content, i.e. on paper that is particularly vulnerable to deterioration and, ultimately, loss. (Id.
¶ 25.)
14.

The process of searching the vast collections of academic libraries such as the

UM Library can take so long that by the time the library identifies the most imperiled books
from the millions potentially at risk, it is too late and the books is lost. (Id. ¶ 26.)
15.

Gradual disintegration is not the only threat to books in the academic libraries.

Loss from theft, vandalism, fire, and floods presents an ever-looming threat. (Id. ¶¶ 30–31.)

3
US2008 3631589

A-1003
Case 1:11-cv-06351-HB Document 113

16.

Filed 06/29/12 Page 4 of 14

Just last week the library at the University of Wisconsin Superior (“UW

Superior”) suffered a catastrophic loss of a portion of its collection as a result of flooding. (June
28, 2012 Declaration of Faith Hensrud (“Hensrud Decl.”) ¶¶ 6–20.)
17.

The flooding of the UW Superior library destroyed approximately 25-30% of the

books in the library’s collection, and approximately 70% of the periodicals. (Id. ¶ 17.)
In The Past It Has Been Difficult and Sometimes Impossible
for Academic Libraries to Help Scholars Identify Works of Potential Interest
18.

Academic libraries aid scholars in the identification of relevant works. (Wilkin

Decl. ¶ 33.)
19.

The immense collections housed by academic libraries would be significantly

diminished without reliable and efficient search methods and related technology. (Id.)
20.

Until relatively recently, most searches of a library’s collection relied on a

physical card catalog. (Id. ¶ 34; June 26, 2012 Declaration of Dr. Stanley N. Katz (“Katz Decl.”)
¶ 5.)
21.

Each card contained limited information concerning a particular work, including

its title, author, publication date and publisher and limited information concerning the work’s
subject matter. (Wilkin Decl. ¶ 34; Katz Decl. ¶ 5.)
22.

Online catalogs emerged in the 1970’s but searches of such databases were still

limited to the work’s basic bibliographic data, namely, author, title, subject. (Wilkin Decl. ¶¶ 35–
36; see also Katz Decl. ¶ 8.)
23.

A work that contained information of great importance to a researcher would not

be discoverable by that researcher unless the work’s title, subject headings, or other limited
bibliographic data happened to contain certain key words or other evidently pertinent
information. (Wilkin Decl. ¶¶ 36–37.)

4
US2008 3631589

A-1004
Case 1:11-cv-06351-HB Document 113

Filed 06/29/12 Page 5 of 14

Digitization of Works With the Libraries’ Collections
24.

In the late 1980’s academic libraries such as the UM Library began converting

works at risk of damage, deterioration and loss to digital format. (Id. ¶ 39.)
25.

Academic libraries began digitizing at risk works in order to ensure that they

would be available for future scholarly pursuits even in the event that the work in physical form
was lost and the libraries could not find a replacement copy at a fair price. (Id. ¶ 41.)
26.

Academic libraries such as the UM Library found that given the enormous size of

their collections they could not digitize and, thereby, preserve deteriorating works quickly
enough. (Id. ¶ 42.)
27.

During this time period academic libraries lost irreplaceable volumes which, as a

result, have vanished from the academic and cultural landscape. (Id.)
Google’s Involvement in the Libraries’ Digitization Efforts
28.

Prior to Google Inc.’s (“Google”) involvement in the UM Library’s digitization

efforts, at its then rate of scanning, it would have taken the UM Library more than 1,000 years to
digitize the UM Library’s then over 7 million volumes. (Id. ¶ 44.)
29.

In 2002, the UM Library began speaking with Google about its interest in

digitizing the UM Library’s entire library collections in less than a decade. (Id. ¶ 45.)
30.

In late 2004, the University of Michigan entered into an agreement with Google

under which Google would convert hardcopy books from the UM Library collections to a digital
format and provide digital copies of those books to the University of Michigan. (Id. ¶ 46, Ex. A.)
31.

In return for giving Google access to books in the UM Library collection, Google

was required to give the UM Library a digital copy of the works digitized by Google. (Id. ¶ 47.)

5
US2008 3631589

A-1005
Case 1:11-cv-06351-HB Document 113

32.

Filed 06/29/12 Page 6 of 14

The University of Michigan bargained for this right because it was important to it

that it had the right to control its own uses and satisfy its primary missions of providing
specialized services to the blind or other persons with disabilities. (Id.)
33.

If the Libraries digitized only select portions of their collections they would not

have achieved their goals of providing a comprehensive search tool; nor would they have
accomplished their goals of providing equal access to students with print disabilities or
preserving all imperiled works. (Id. ¶¶ 48–51.)
34.

While the University of Michigan’s library was the first academic library to work

with Google in connection with what would become the “Google Book Project,” Google
ultimately partnered with each of the Libraries as well as such universities as Harvard
University, Stanford University, Oxford University, Columbia University, Princeton University,
the University of Virginia, and the University of Texas at Austin, among others. (Id. ¶ 52.)
35.

The benefits to society—in preserving books, making them accessible to people

with print disabilities, and enabling people to find them—increased significantly with each
institution that digitized books from its collections. (Id.)
The Formation of HathiTrust
36.

In 2008, the University of Michigan formed HathiTrust, named for the Hindi

word for elephant, “hathi,” evoking the qualities of memory, wisdom, and strength symbolized
by elephants. (Id. ¶ 53.)
37.

HathiTrust was formed because the Libraries concluded that by working together

and pooling resources they could better serve their common goals of collecting, organizing,
securing, preserving and, consistent with applicable law, sharing the record of human
knowledge. (Id. ¶ 54.)

6
US2008 3631589

A-1006
Case 1:11-cv-06351-HB Document 113

38.

Filed 06/29/12 Page 7 of 14

Pursuant to the HathiTrust mission, participating members combined their

digitized collections in order to provide more secure, long-term storage for the works, more
comprehensive research and discovery tools, improved access to works in the public domain and
improved access to works for students and faculty with print disabilities. (Id. ¶ 55.)
39.

The University of Michigan and HathiTrusts’s purposes are non-profit,

educational purposes. (Id. ¶¶ 8, 55, Ex. B.)
40.

The Libraries’ digitization efforts do not diminish their acquisitions of in-

copyright material (digital or otherwise). (Id. ¶¶ 16, 69.)
The Composition of the HathiTrust Digital Library (“HDL”)
41.

The combined corpus of the HDL now totals more than 10 million works. (Id. ¶

42.

At least 30% of the corpus consists of material that is clearly within the public

57.)

domain. (Id. ¶ 62.)
43.

Works published between 1923 and 1963 entered the public domain unless they

were renewed, and according to a 1960 Copyright Office study only 7% of books were renewed.
(See Staff of S. Comm. on the Judiciary (Barbara Ringer), 86th Cong., Renewal of Copyright 31,
at 220 (Comm. Print 1960).)
44.

The vast majority of works in the HDL corpus are now out of print (and, in fact,

for older works within the collection, have been out of print for decades). (Wilkin Decl. ¶ 66; see
also Mem. of Law in Supp. of Pls.’ Mot. For Prelim. Settlement Approval at 27, The Authors
Guild, Inc. v. Google Inc., No. 05-cv-8136 (S.D.N.Y. Oct. 28, 2008) (The Authors Guild
confirms that “[a]pproximately 75% of the Books in United States libraries are out-of-print and
have ceased earning any income at all for their Rightsholders”).)

7
US2008 3631589

A-1007
Case 1:11-cv-06351-HB Document 113

45.

Filed 06/29/12 Page 8 of 14

Less than 9% of the HDL corpus consists of prose fiction, poetry and drama.

(Wilkin Decl. ¶ 67.)
46.

Approximately 90% of the HDL corpus consists of factual works such as books

and journals in many disciplines of the arts, humanities, social sciences and sciences. (Id.)
47.

The security employed with respect to the HDL meets, and in many ways

exceeds, the specifications developed by the parties in the Google Books proposed settlement.
(Id. ¶ 93.)
The Limited Uses of the Works within the HDL
48.

The Libraries permit only three categories of uses of works within the HDL that

are presumed to be in-copyright: (1) full text search; (2) preservation; and (3) access for people
with certified print disabilities. (Id. ¶ 68.)
49.

Through the Internet, users of the HathiTrust website may search for a particular

term across all works within the HDL. (Id.)
50.

For those works that are not in the public domain or for which the copyright

holder has not expressly authorized use, the search results indicate only the page numbers on
which a particular term is found within a particular book or periodical, and the number of times
that term appears on each page. (Id.)
51.

Unlike Google’s service, the search results do not show portions of text in

“snippet” format. (Id.)
52.

When searching in-copyright material, at no time does the user have digital access

to any of the actual written content within such works (unless he/she is afforded access as a
certified print disabled user). (Id.)

8
US2008 3631589

A-1008
Case 1:11-cv-06351-HB Document 113

53.

Filed 06/29/12 Page 9 of 14

The HDL is not a substitute, in any respect, for the Libraries’ acquisitions of in-

copyright material and does not diminish the Libraries’ purchases of in-copyright works. (Id. ¶¶
16, 69).
54.

The HDL represents protection against the prospect of damage, deterioration and

loss in circumstances where the Libraries cannot obtain a replacement copy at a fair price. (Id. ¶
68.)
55.

For decades, the Libraries have converted works in their collection to alternative

formats for the blind and other persons who have disabilities that prevent them from accessing
printed materials. (Id.)
56.

Digitization has significantly improved the quality of access for print-disabled

readers. (Id.)
57.

Through digitization, an authorized patron with a print disability can have

immediate access to a work in a format that can be made accessible through a variety of
technologies, including software that translates the text into spoken words. (Id. ¶ 105.)
58.

The HDL was designed specifically to enable libraries to make their collections

accessible in digital format to print-disabled readers. (Id.)
59.

The HDL has a positive effect on purchasing of in-copyright works because

scholars, students, and other patrons are more likely to discover, purchase and use works that
they can locate through digital search. (Id. ¶ 70–74; June 29, 2012 Declaration of Dr. Joel
Waldfogel (“Waldfogel Decl.”) ¶¶ 7, 48–50; June 26, 2012 Declaration of Margaret Leary
(“Leary Decl.”) ¶ 15.)

9
US2008 3631589

A-1009
Case 1:11-cv-06351-HB Document 113

Filed 06/29/12 Page 10 of 14

The Immense Public Benefits of the HDL
60.

The HDL offers immense public benefit. (Wilkin Decl. ¶¶ 75–77, 83–86, 100–

102, 106); (Katz Decl. ¶¶ 9–17); (Leary Decl. ¶¶ 9–14.)
61.

One of the primary goals of HathiTrust has always been to enable people who

have print disabilities to access the wealth of information within library collections. (Wilkin
Decl. ¶ 100.)
62.

For centuries, libraries have been inaccessible to people who have a broad range

of disabilities because library collections have not been available in accessible formats. (Id. ¶
101.)
63.

The HDL was constructed with the objective of making the world’s first

accessible research library. (Id. ¶ 100.)
64.

To obtain access to digital versions of in-copyright works in the HDL, a student,

faculty member, or staff member at the University of Michigan with a print disability must
obtain certification from a qualified expert who in turn informs the UM Library that the
individual has a certified print disability for which digital access is a reasonable accommodation.
(Id. ¶ 105.) The University of Michigan explains the digital library to the patron, describes
appropriate uses of the service (including warnings about copyright infringement), and enables
the patron to get secure digital access to the HDL corpus. (Id.)
65.

With digital access, a print-disabled patron can perceive the works within the

HDL using adaptive technologies such as software that translates the text into spoken words.
(Id.)
66.

The HDL makes it possible for students with certified print disabilities to achieve

their full academic and scholarly potential. (Id. ¶ 106.)

10
US2008 3631589

A-1010
Case 1:11-cv-06351-HB Document 113

67.

Filed 06/29/12 Page 11 of 14

Full-text searching such as the search functionality offered through the HDL

constitutes the most significant advance in library search technology since the 1960s. (Wilkin
Decl. ¶ 75; see also Katz Decl. ¶ 9.)
68.

Rather than combing through electronic cataloging records and attempting to

discern which works in the collection may be of interest, scholars can access the HDL website
and search the actual text of over 10 million books and journals. (Wilkin Decl. ¶ 76; see also
Katz Decl. ¶¶ 9–10.)
69.

The HDL has made it possible for university students, faculty, and staff, as well

as the general public, to search the combined digital collections contributed by the HathiTrust
members. (Wilkin Decl. ¶ 77.)
70.

The search results display bibliographic information—including title, author,

publisher, and publication date—for books containing the search term, as well as the page
numbers on which the term is found and the number of times the term appears on each page,
giving some clues as to how useful the book might be. (Id.; Katz Decl. ¶¶ 10–11; Leary Decl. ¶¶
9–11.)
71.

Without the ability to search the entire full text of in-copyright materials, the

content within these resources—as distinct from basic bibliographic information describing that
text—is invisible, or nearly so, to the majority of researchers. (Wilkin Decl. ¶ 82; Katz Decl. ¶¶
11–17; Leary Decl. ¶¶ 9–13.)
72.

The HDL empowers scholars to perform types of research on a scale that simply

could not be performed before the HathiTrust libraries digitized their collections. (Wilkin Decl. ¶
84; see also June 26, 2012 Declaration of Dr. Neil Smalheiser (“Smalheiser Decl.”) ¶¶ 27–29.)

11
US2008 3631589

A-1011
Case 1:11-cv-06351-HB Document 113

73.

Filed 06/29/12 Page 12 of 14

For example, a digital research method called “text mining”—which has the goal

of finding patterns and connections from large databases of textual material—is already proving
itself a powerful and important tool for scholarly research. (Smalheiser Decl. ¶¶ 3–6.)
74.

The HDL offers the promise to yield breakthrough research discoveries—

including lifesaving scientific discoveries—that simply would not be possible if the HDL corpus
and HathiTrust services ceased to exist. (Wilkin Decl. ¶ 77; Smalheiser Decl. ¶¶ 25–29.)
75.

The HDL helps to ensure the preservation of the published record of human

knowledge through the creation of reliable and accessible electronic representations of the works
within the corpus. (Wilkin Decl. ¶ 86.)

The Orphan Works Project
76.

Orphan works are works which are presumed to be in-copyright and for which a

rights holder cannot be identified. (Id. ¶ 108.)
77.

The University of Michigan developed a project that it called the “Orphan Works

Project” (the “OWP”). (Id. ¶ 109.)
78.

The OWP contemplated two distinct phases. (Id. ¶ 110.)

79.

In the first phase of the OWP the goal was to identify potential orphan works

through a diligent, reasonable process that eliminates works that are claimed by a putative rights
holder or that are otherwise found not to be orphans. (Id.)
80.

Under the second phase of the project, the University of Michigan considered

making limited uses of works identified as orphans through the first phase of the project. (Id.)
81.

The uses that the University of Michigan contemplated making of works

identified as orphans were limited to allowing access to orphan works for the purpose of online

12
US2008 3631589

A-1012
Case 1:11-cv-06351-HB Document 113

Filed 06/29/12 Page 13 of 14

review, with the number of users permitted to view a given work limited at anyone time to the
number of copies held by the UM Library. (Id.
82.

~

111.)

Readers would have been reminded, through watermarking and other explicit

notices, that the books are subject to copyright. (Id.)
83.

After completing its initial process to identify potential orphan works, the

University of Michigan concluded that there were flaws in its pilot process and that it needed to
remedy those flaws before moving ahead with the OWP. (Id.
84.

~~

112-114.)

The University of Michigan suspended the OWP process and never proceeded to

the second step of the project (i.e., it never proceeded to enable limited uses of putative orphan
works) although it continues to study ways to improve the orphan identification process. (Id. ~
114.)
85.

Not a single patron has been given access to a work through the OWP and at

present, the University of Michigan does not know whether or how the OWP will continue. (Id.

~

116.)
86.

Not a single in-copyright work has been distributed, displayed, or performed to

the public as an orphan work. (Id.)
DATED: June 29, 2012
New York, New York

osep Petersen (JP 9071)
Robert Potter (RP 5757)
KILPATRICK TOWNSEND & STOCKTON LLP
1114 Avenue of the Americas
New York, NY 10036
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]

l3
US2008 3631589

A-1013
Case 1:11-cv-06351-HB Document 113

Filed 06/29/12 Page 14 of 14

Joseph M. Beck (admitted pro hac vice)
W. Andrew Pequignot (admitted pro hac vice)
Allison Scott Roach (admitted pro hac vice)
KILPATRICK TOWNSEND & STOCKTON LLP
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants

14
US2008 3631589

A-1014
Case 1:11-cv-06351-HB Document 114-1

Filed 06/29/12 Page 1 of 51

EXHIBIT 1

A-1015
Case 1:11-cv-06351-HB Document 114-1

Filed 06/29/12 Page 2 of 51

Page 1
1
2
3
4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------X
THE AUTHORS GUILD, INC., ET AL.,

5

Plaintiff,
Index no. 11 Civ. 6351 (HB)

6

VS.
7

HATHITRUST, et al.,
8

9

Defendants.
--------------------------------X

10
11

**C O N F I D E N T I A L**

12
13
14
15
16
17
18

DEPOSITION
OF
PAT CUMMINGS
Tuesday, May 22, 2012
1114 Avenue of the Americas
New York, New York

19
20
21

22

Reported by:
AYLETTE GONZALEZ, CLR
JOB NO. 49735

23
24
25

TSG Reporting - Worldwide

877-702-9580

A-1016
Case 1:11-cv-06351-HB Document 114-1

Filed 06/29/12 Page 16 of 51

Page 54

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

CONFIDENTIAL-PAT CUMMINGS
from public and academic libraries."
Do you see that?
A. Yes.
Q. What was the nature of that
discussion?
A. I think we were advised of some
press about, you know, librarians reacting to
the Authors Guild lawsuit.
Q. And what specifically did you
discuss concerning that press?
A. I don't recall the specifics. I
recall thinking that -- being surprised that
librarians wouldn't understand the Guild's
position or that they were trying to spin it.
That's how I felt at the time.
Q. The next statement says, "The
common misconceptions about how many 'orphan
works' there really are."
Do you have any understanding as to
what that's referring to?
A. My understanding was at the time,
and is now, that what was being called "orphan
works" weren't necessary orphan works. And
that if they were so easy to identify, and

Page 55

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

CONFIDENTIAL-PAT CUMMINGS
those authors were currently working and had
agents and publishing, how could it -- it
didn't seem that it was that difficult to find
some of these, theoretically, orphan works.
Q. And the next statement says what
the Guild's public relations and social media
strategy should be, among other subjects. Do
you see that?
A. Yes.
Q. What was the nature of that
discussion concerning the Guild's public
relations and social media strategies?
A. To the best of my memory, we talked
about there was some discussion about how the
spin of the lawsuit by the HathiTrust was that
we were against blind people or something and
trying to prevent them from having braille
copies. It was something that it was
necessary to explain the Guild's position.
And I think that's what our discussion was
about. We felt the need to really explain the
position because that seemed to have been an
extreme cherry-picked item that was not at all
the intention of the suit.

Page 56

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

CONFIDENTIAL-PAT CUMMINGS
Q. You say an extreme cherry-picked
item. What do you mean by that?
A. I mean that if you have a problem
with somebody taking your work, to say that
you're depriving blind people seemed to come
out of -- not left field, but seemed to be an
extreme situation that was not the intent of
the suit. And to the best of my memory, our
discussion was about how to present the
Guild's position publicly so that we were
representing ourselves in the manner that we
felt, you know, our issues to be, and not to
be defined.
Q. Would you agree with me that it's
beneficial to individuals with disabilities to
have access to the works that have been
digitized as part of the HathiTrust project?
A. No.
MR. GOLDMAN: Objection to the
form.
A. No.
Q. So, you do not believe the print
disabled should have access to those works?
MR. GOLDMAN: Objection to the

Page 57

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

TSG Reporting - Worldwide

CONFIDENTIAL-PAT CUMMINGS
form.
A. No.
Q. I'm going to mark, as PC-5, a
document entitled, "Objections And Responses
of Plaintiff Pat Cummings To Defendants' First
Set Of Interrogatories And Request For The
Production of Documents."
(Exhibit PC-5, document entitled
"Objections And Responses Of Plaintiff
Pat Cummings to Defendants' First Set
Of Interrogatories And Requests For
The Production of Documents," marked
for identification, as of this date.)
MR. GOLDMAN: Is there a question
pending?
MR. PETERSEN: I'm waiting for
her, Ms. Cummings, to read the
document.
Q. Do you recognize Exhibit 5?
A. Yes.
Q. Have you seen it before today?
A. Yes.
Q. What is it?
A. Okay; it is the Objections And

877-702-9580

15

A-1017
Case 1:11-cv-06351-HB Document 114-2

Filed 06/29/12 Page 1 of 58

EXHIBIT 2

A-1018
Case 1:11-cv-06351-HB Document 114-2

Filed 06/29/12 Page 2 of 58

Page 1
1
2

UNITED STATES DISTRICT COURT

3

SOUTHERN DISTRICT OF NEW YORK

4

-------------------------------x
THE AUTHORS GUILD, INC.,

5

et al.,

6

Plaintiffs,

7

vs.

Index No.
11 Civ. 6351 (HB)

8

HATHITRUST, et al.,

9

Defendants.
-------------------------------x

10
11
12
13

VIDEO TELECONFERENCE
DEPOSITION OF HELGE RØNNING

14

New York, New York

15

May 29, 2012

16
17
18
19
20
21
22
23
24

Reported by:
FRANCIS X. FREDERICK, CSR, RPR, RMR

25

JOB NO. 50107
TSG Reporting - Worldwide

877-702-9580

A-1019
Case 1:11-cv-06351-HB Document 114-2

Filed 06/29/12 Page 22 of 58

Page 78

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

H. RØNNING
issues, digital divides and citizens' rights.
Digital divides because it's being
discussed within the context on both sides.
Citizens' rights because citizens' rights are
a few times. And those rights, you have
citizens' rights but they're also those rights
you as a citizen, as an author, have in
relation to your works. 2006.
Q. And in that same paragraph you
write: "The use of the legal system for
industry rent seeking is often so obvious as
to be embarrassing."
What did you mean by that?
A. Yes. I mean that -- this is a
reference to the so-called Mickey Mouse Act of
the American copyright decisions.
Q. And when you say Mickey Mouse Act,
are you talking about the copyright extension?
A. Yes. Which has been hotly debated
and where I disagree with what was decided.
That does not mean that I disagree with
copyright as such.
Q. And you say you disagree with what
was decided.

Page 79

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

H. RØNNING
A. I think that the balance then
became too much in relation of industrial
owners of copyright rather than the authors.
Q. And when you say industrial owners
of copyright, to whom are you referring?
A. Well, in this connection, to the
Walt Disney Corporation. And, this, of
course, has to do with the relationship
between Walt Disney and a creative -- there's
a very famous Donald Duck creator and author
and draftsman.
Q. Professor, if a student with a
print disability wanted to have the benefit of
one of your articles, do you know how that
student could obtain access to your works?
A. Yes.
Q. And how would he or she?
A. She would, under Norwegian
Copyright Act, have access to it and if there
was remuneration for that use it would be paid
typically to Kopinor which will then
administer it to me.
Q. Okay. But I'm just talking
mechanically, what would a student -- say, if

Page 80

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

H. RØNNING
a student in the US wanted -- that was blind
wanted to read one of your articles, do you
have any knowledge as to how that student
could obtain a copy that he or she could
actually understand?
MR. ROSENTHAL: Objection.
A. No, I do not know. I mean, I know
what's the situation in Norway. And I know
that that material for the people with
impaired sight would typically be handled by
the Norwegian Foundation for the Blind and
they would do that under the Norwegian
Copyright Act and those who are owed copyright
to be paid remuneration. Typically, if a
blind student wants a book to be as an audio
book he or she can ask for it and then it can
be recorded for him and the copyright owner
will be remunerated and she will get it under
the Norwegian Foundation.
Q. But you have no understanding of
how a US student would obtain -- would -- a US
student with a print disability would obtain
access to your works.
A. No. Why should I?

Page 81

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

TSG Reporting - Worldwide

H. RØNNING
Q. Professor, turning to your
decision to be included as a named plaintiff
in the HathiTrust lawsuit, what is the nature
of your understanding -- what is the
understanding of your -- I'm sorry. Strike
that.
What is your understanding of the
nature of this lawsuit?
MR. ROSENTHAL: Objection. You're
asking for a legal conclusion?
Q. No. Just what claims do you
understand to be made in connection with the
HathiTrust lawsuit.
A. What do you mean by claims?
Q. What sort of -- what activities
are you complaining about in this lawsuit?
A. I'm complaining about, first of
all, that by digitizing my work they have
violated my moral rights to my work. And
these books were published in Norway, not in
United States where moral rights apply.
There's a very interesting court case which
was decided in Copenhagen about 20 years ago
regarding the American filmmaker, Pollack, who

877-702-9580

21

A-1020
Case 1:11-cv-06351-HB Document 114-3

Filed 06/29/12 Page 1 of 91

EXHIBIT 3

A-1021
Case 1:11-cv-06351-HB Document 114-3

Filed 06/29/12 Page 2 of 91

Page 1
1

UNITED STATES DISTRICT COURT

2

SOUTHERN DISTRICT OF NEW YORK

3
4

THE AUTHORS GUILD, INC.,

)

et al.,

)

5

)
Plaintiffs,

6

)
vs.

)Index No.:

7

11 CIV. 6351 (HB)

)
HATHITRUST, et al.,

8

)
)

Defendants.
9

)

)

__________________________)

10
11
12
13

DEPOSITION OF TIMOTHY J. STILES

14

San Francisco, California

15

Thursday, May 31, 2012

16
17
18
19
20
21
22
23

BY:

24

CSR LICENSE NO. 12885

25

JOB NO. 50217

HEIDI BELTON, CSR, RPR, CRR, CCRR, CLR

TSG Reporting - Worldwide

877-702-9580

A-1022
Case 1:11-cv-06351-HB Document 114-3

Filed 06/29/12 Page 43 of 91

Page 162
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

licensing is the Talking Books edition.
15:40:55
Q. If you could turn back to the responses to the
first set of interrogatories which should be Stiles-5,
if I noted this to myself properly.
If you could please turn to page 8 to
15:41:29
interrogatory number 6. Do you see that?
A. Yes.
Q. And it asks that for each work you claim was
infringed in this lawsuit you identify any harm that has
occurred or is expected to occur to any market or
15:41:43
potential market for that work by virtue of the
defendant's alleged conduct. Do you see that?
A. Yes.
Q. Turn to page 9, the end of this response. It
says, "Plaintiff has to date not been able to quantify 15:42:12
any specific revenues lost as a result of defendant's
infringing conduct and plaintiff is not aware of any
documents in plaintiff's possession, custody, or control
that could be employed to quantify any specific damages
incurred as a result of defendants' infringing conduct." 15:42:26
Do you see that?
A. Yes.
Q. Is this still the case?
A. No.
Q. Okay.
15:42:34

Page 163
1

A. In fact I can identify very specifically the

2

loss of the revenue to be derived from the sale of one

3

digital edition of the book. Which as mentioned is

4

commercially available, has been for approximately two

5

years, and which could easily have been legally acquired 15:42:55

6

for archival or other purposes. And yet the HathiTrust

7

instead has without my permission digitized my book when

8

it could very easily and very inexpensively have

9

purchased a legal copy. So in a sense, speaking

10
11
12

15:42:39

colloquially, one copy of my book has been stolen.

15:43:15

Q. Are there any documents that could be used to
help quantify?

13

A. I would like to refer the counsel to exhibit

14

Stiles 9. Here it indicates that the Kindle edition of

15

Jesse James: Last Rebel of the Civil War is available

16

for sale with one click at $13.99.

17

Q. Okay.

18

A. And then if you wish to understand my personal

19

revenue that would be derived from that, you may consult

20

my royalty statement. And from there you can calculate

21

my actual take from one individual copy of this book.

22

2
3
4

referring you to is page 9.

15:44:42

15:43:59

Q. If I could refer you to the Stiles-6 exhibit,

23

which is the second set of interrogatories -- the

24

responses to the second set of interrogatories and

25

request for production. I believe the page I'm

15:44:32

Page 164
1

15:43:43

Page 165
1

would be derived from the sale of one copy of my book.

A. Page 9?

2

Q. Okay. And if you'd turn to page 8 of the same

Q. Mm-hmm. I'm sorry. Could you please go to

3

document. There is a bulleted list of potential harms

4

that are enumerated. And I believe there's eight bullet

page 7.

5

A. Of course.

15:45:20

5

points that are identified as, I guess, the effect of

6

Q. To interrogatory number 5. Which asks that

6

the potential market for or value of the copyrighted

7

for each work you claim was infringed in this lawsuit

7

work. Do you see that at the top of page 8?

8

you identify any harm you have suffered or will suffer

8

9

from the inclusion of your work in the HathiTrust.

9

15:46:30

15:46:58

A. Yes.
Q. Did you draft the language in this response

10

A. I see it.

15:45:38

10

yourself?

11

Q. And I'm going to try to find your answer.

11

15:47:17

12

After the break in the response, it states

12

sorry to say that no, I have not made legal history by

13

that, "Plaintiff has not identified any specific

13

drafting a response in a formal document to be filed

14

quantifiable past harm or any documents relating to any

14

with the court as a plaintiff who has no training or

15

standing as an attorney. In fact, I provided

16

such past harm." And I'm guessing based on the response 15:45:55 15
16
that you just gave me that that is not still the case;

17

is that correct?

A. That is a very interesting question. I'm very

15:47:40

information that allowed my attorney to draft a response

17

that's in keeping with the expected format. So I'm

18

A. That is correct.

18

sorry that we can't make history here today but in fact

19

Q. And for the reasons you just discussed?

19

I've done it the way everyone does.

20

A. That is correct, that the public university

15:46:07

20

Q. That's fine. But you verified these

15:47:57

21

libraries under cover of sovereign immunity have in dark

21

22

of night stolen a copy of my book and have now told me

22

23

that I should like it. So certainly the direct harm can

23

24

be quantified at the retail cost of one digital book.

24

correct except for the things that you've already

25

And the harm then to me would be the royalties that

25

identified to us so far?

15:46:27

TSG Reporting - Worldwide

interrogatories as we discussed earlier?
A. Yes, absolutely.
Q. And you said you believe that they're still

877-702-9580

15:48:10

42

A-1023
Case 1:11-cv-06351-HB Document 114-4

Filed 06/29/12 Page 1 of 44

EXHIBIT 4

A-1024
Case 1:11-cv-06351-HB Document 114-4

Filed 06/29/12 Page 2 of 44

Page 1
1
2

UNITED STATES DISTRICT COURT

3

SOUTHERN DISTRICT OF NEW YORK

4

- - - - - - - - - - - - - - - - -x
THE AUTHORS GUILD, INC.,

5

et al.,

6

Plaintiffs,

Index No.
11 Civ. 6351 (HB)

7
8

-againstHATHITRUST, et al.,
Defendant.

9

- - - - - - - - - - - - - - - - -x

10
11

DEPOSITION OF JOHN W. WHITE

12
13

New York, New York

14

Friday, June 8, 2012

15
16
17
18
19
20
21
22

Reported by:

23

JEFFREY BENZ, CRR, RMR

24

JOB NO. 50523

25

TSG Reporting - Worldwide

877-702-9580

A-1025
Case 1:11-cv-06351-HB Document 114-4

Filed 06/29/12 Page 8 of 44

Page 22

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

White
Paolo Alto, California. The institute was
founded in 1972 by Apollo 14 Astronaut Edgar
Mitchell, who was the second man on the moon,
and hired me to handle communications and
educational matters for the institute.
I left there in 1974 to become a
full-time freelance writer and continued in that
capacity until 1979, at which time I became
president of a small adult education
institution, non--- non-degreed.
And in -- in -- let's see, in 1981, I
joined the electric utility company in
Connecticut, which is called Northeast
Utilities. I served there in the public
relations department as an executive speech
writer and editor of the company quarterly
shareholder report and the employee newspaper.
I retired from there in 1995, and then became
full-time literary agent.
Pause, please. I need some water.
Q. Sure.
A. Thank you.
Q. Thank you, Mr. White. That was very
concise and succinct and comprehensive.

Page 23

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

White
A. It sounded long-winded to me.
Q. I've heard a lot of those.
MR. GOLDMAN: This could have lasted a
lot longer.
MR. POTTER: Yeah.
Q. I appreciate that. Just a couple
follow-up questions on those. Regarding this
Institute for Noetic Sciences, what are noetic
sciences?
A. Noetic means the study of
consciousness, and it is derived from the Greek
word "nous," meaning higher mind as used by
Plato in his writings.
So it's -- put it in a different way,
Apollo 14 Astronaut Edgar Mitchell wanted to
study the human mind in the same way that the
Apollo program launched him to the moon, with
scientific rigor and comprehensiveness, and then
apply those findings to the problems of human
society and civilization.
Q. Is that institute -- does it still
exist?
A. Yes, it's now relocated in -- north of
San Francisco, in Petaluma, California.

Page 24

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

White
Q. You also mentioned that beginning in
1979, you were the president of your own -- or
of an adult education institution -A. Right. It was not my own.
Q. -- non-degreed?
A. I'm sorry, I didn't mean to interrupt
you.
Q. I didn't mean to suggest that it was.
What was the name of that institution?
A. The Alpha Logics School.
Q. And what type of education did the
Alpha Logics School offer?
A. Primarily training in psychic
development, meditation, and related phenomena.
Q. And by "psychic development," do you
mean in the colloquial psychic powers, or just
the psyche generally?
A. Yes, psychic powers.
Q. Are you still affiliated with the
Alpha Logics School?
A. No.
Q. When did your affiliation end?
A. In 1981, formally, but I'm still
friends with the owner.

Page 25

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

TSG Reporting - Worldwide

White
Q. Where is that school?
A. In Bristol, Connecticut.
Q. And that's where it is today?
A. It's defunct.
Q. Mr. White, have you ever been involved
as a plaintiff or defendant in any copyright
lawsuits, other than this one?
A. No.
MR. GOLDMAN: And objection to form.
I don't think he's formally involved.
Q. And have you ever threatened anyone
with copyright litigation, either personally or
through an attorney?
A. No.
Q. And has anyone ever threatened you
personally with copyright litigation?
A. No.
Q. Have any of the authors you
represented as literary agent during your tenure
as agent been sued for copyright infringement?
A. Not that I recall.
Q. And have any of them during your
tenure as their agent sued anyone else for
copyright infringement?

877-702-9580

7

A-1026
Case 1:11-cv-06351-HB Document 114-71

Filed 06/29/12 Page 1 of 43

EXHIBIT 71

A-1027
Case 1:11-cv-06351-HB Document 114-71

Filed 06/29/12 Page 2 of 43

KILPATRICK TOWNSEND & STOCKTON LLP
Joseph Petersen (JP 9071)
31 West 52nd Street, 14th Floor
New York, New York 10019
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Joseph M. Beck (admitted pro hac vice)
W. Andrew Pequignot (admitted pro hac vice)
Allison Scott Roach (admitted pro hac vice)
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE AUTHORS GUILD, INC., ET AL.,
Case No. 11 Civ. 6351 (HB)
Plaintiffs,
v.
HATHITRUST, ET AL.,
Defendants.

RESPONSES TO PLAINTIFFS’
FIRST SET OF
INTERROGATORIES
TO DEFENDANT HATHITRUST

A-1028
Case 1:11-cv-06351-HB Document 114-71

Filed 06/29/12 Page 3 of 43

Because, as stated below, HathiTrust is not a separate entity capable of being sued or
responding to discovery requests, Defendant Mary Sue Coleman (“Defendant”), in her official
capacity as President of The University of Michigan (“UM”) and who has the authority to
control the HathiTrust Service and the shared repository of digital collections of institutions
participating in the HathiTrust Service (the “HathiTrust Digital Library” or “HDL”), states the
following objections and responses to Plaintiffs’ First Set of Interrogatories to Defendant
HathiTrust pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure (“FRCP”) and
the Local Rules of the United States District Courts for the Southern and Eastern Districts of
New York (the “Local Rules”) and based upon information provided to her by employees of UM
with personal knowledge of the relevant facts.
A.

GENERAL OBJECTIONS AND LIMITATIONS
1.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

on the ground that HathiTrust is the name of a service provided by UM under agreements with
member institutions (the “HathiTrust Service”) and is not a separate entity capable of being sued
or responding to discovery requests.
2.

Defendant’s discovery and investigation of the facts of this proceeding are

continuing. These Interrogatory responses are based on information gathered as of the date of
these responses. Defendant reserves the right to amend or supplement her responses when and if
additional information is obtained, as required by the FRCP or the Local Rules.
3.

Defendant objects to each of Plaintiffs’ definitions and instructions to the extent

they impose burdens and requirements on Defendant that are inconsistent with or beyond those
set forth in the FRCP or the Local Rules.

2

A-1029
Case 1:11-cv-06351-HB Document 114-71

4.

Filed 06/29/12 Page 4 of 43

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent they impose burdens and requirements on Defendant that are inconsistent with or
beyond those set forth in the FRCP.
5.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that the information sought is protected from disclosure by (a) agreements with
other parties, including, but not limited to, confidentiality agreements, (b) court order, or (c)
statute, regulation, administrative order or case law.
6.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that the information sought is commercially sensitive proprietary and/or confidential
information and trade secrets (“Confidential Information”). Defendant will provide nonprivileged, responsive Confidential Information only pursuant to the Protective Order in place in
this litigation.
7.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that the information sought was prepared in anticipation of litigation, constitutes
attorney work product, discloses mental impressions, conclusions, opinions, or legal theories of
Defendant’s attorneys, contains privileged attorney-client communications (including but not
limited to those subject to the common interest or joint defense privilege) or is otherwise
protected from disclosure under applicable privileges, law, or rules, or because such information
is not properly discoverable under the FRCP or the Local Rules. Any disclosure of such
protected or privileged information in any response is inadvertent and shall not constitute a
waiver of such privilege, protection or immunity.
8.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that the information sought is (a) not in Defendant’s or UM’s possession, custody,

3

A-1030
Case 1:11-cv-06351-HB Document 114-71

Filed 06/29/12 Page 5 of 43

or control, (b) in the possession, custody, or control of Plaintiffs, (c) publicly available, or (d) as
equally available and/or readily accessible to Plaintiffs as it is to Defendant. These interrogatory
responses are based on a reasonably diligent search for and review of information in those areas
within Defendant’s or UM’s direct knowledge, custody, or control where information of the type
requested would be expected to be found, and Defendant disclaims any obligation to solicit
information from any other parties in responding to the Interrogatories.
9.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent they are vague, ambiguous, and/or contain terms that are undefined or otherwise
unclear.
10.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that the information sought is irrelevant to the subject matter of this action and to
the extent that the Interrogatories are not reasonably calculated to lead to the discovery of
admissible evidence.
11.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that they prematurely call for the disclosure of information that Defendant may
obtain through discovery.
12.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

insofar as they assume disputed facts or legal conclusions. To the extent any interrogatory
assumes disputed facts or legal conclusions, Defendant denies such disputed facts or legal
conclusions. Any response or objection by Defendant with respect to any such Interrogatory is
without prejudice to this objection and Defendant’s right to dispute facts and legal conclusions
assumed by the Interrogatories.

4

A-1031
Case 1:11-cv-06351-HB Document 114-71

13.

Filed 06/29/12 Page 6 of 43

No objection or limitation, or lack thereof, made in these responses and objections

shall be deemed an admission by Defendant as to the existence or nonexistence of information.
14.

Defendant’s responses to the Interrogatories are made without prejudice to the

assertion of additional objections and responses by her at a later date or to Defendant’s right to
supplement, modify, or amend her responses as appropriate, and to rely upon and produce
evidence during trial or at any other proceeding that may be held in this action.
15.

Defendant reserves the right to object on any ground at any time to a demand for

further response, and reserves the right to revise, supplement, correct, or add to these responses.
Defendant expressly reserves any and all rights and privileges under the FRCP, the Local Rules,
and any other law or rule, and the failure to assert such rights and privileges shall not constitute a
waiver thereof, either with respect to these responses or with respect to any future discovery
responses or objections.
16.

Defendant incorporates by reference these General Objections into each of the

Responses and Specific Objections set forth below, as if fully set forth in each of them.
B.

SPECIFIC OBJECTIONS AND LIMITATIONS
DEFINITIONS
1.

Defendant objects to Plaintiffs’ definition of “University” as overly broad and

unduly burdensome in that it includes “each of its subsidiaries, divisions and affiliates,
principals, officers, directors, members, employees, agents and attorneys,” which refers to
thousands of individuals, the vast majority of which have no knowledge of and have had no
involvement in the activities that are the subject of Plaintiffs’ claims in this action.
2.

Defendant objects to Plaintiffs’ definition of “digital copy” and to each

Interrogatory including that term as vague and ambiguous in Plaintiffs’ define a “digital copy” of

5

A-1032
Case 1:11-cv-06351-HB Document 114-71

Filed 06/29/12 Page 7 of 43

a Work as “a copy of all or substantially all of the Master Print Copy” without defining “Master
Print Copy.” As relied upon for the definition of “digital copy” as used in the Interrogatories,
Defendant understands “Master Print Copy” to refer to a print copy of a Work purchased or
otherwise acquired through lawful means by UM.
3.

Defendant objects to Plaintiffs’ definition of “HathiTrust Digital Copies” and to

each Interrogatory including that term as vague and ambiguous in that Plaintiffs’ definition of
“HathiTrust Digital Copies” incorporates and relies upon Plaintiffs’ definition of “digital copy,”
which is itself vague and ambiguous as described above in Paragraph B.2. Defendant further
states that four “HathiTrust Digital Copies” are maintained to store and preserve the digitized
works in the HDL: (1) the “Initial HathiTrust Digital Copy” received from Google and
incorporated into the HDL at UM, (2) the “Mirror Site HathiTrust Digital Copy,” (3) the “First
Backup Tape HathiTrust Digital Copy,” and (4) the “Second Backup Tape HathiTrust Digital
Copy.”
4.

Defendant objects to Plaintiffs’ definition of “Third Party Digital Copies” and to

each Interrogatory including that term as vague and ambiguous in that Plaintiffs’ definition of
“Third Party Digital Copies” incorporates and relies upon Plaintiffs’ definition of “digital copy,”
which is itself vague and ambiguous as described in Paragraph B.2.
INSTRUCTIONS
5.

Defendant objects to Paragraph 1 of Plaintiffs’ “Instructions” on the ground that it

impermissibly seeks to impose burdens and requirements beyond those set forth in the FRCP 26
and 33 by requiring responses to the Interrogatories based upon the knowledge of, and
information available to, parties other than the party upon which the Interrogatories are served.
Defendant further objects to this definition because it could potentially refer to thousands of

6

A-1033
Case 1:11-cv-06351-HB Document 114-71

Filed 06/29/12 Page 8 of 43

individuals, the vast majority of which have no knowledge of and have had no involvement in
the activities that are the subject of Plaintiffs’ claims in this action, and in this regard is overly
broad, unduly burdensome, seeks irrelevant information and is not reasonably calculated to lead
to the discovery of admissible evidence.

RESPONSES TO INTERROGATORIES
1.
Identify the total number of digital copies of works held by HathiTrust and the
estimated number of those works that are protected by copyright under the United States
Copyright Act.
RESPONSE: Defendant objects to Interrogatory No. 1 on the ground that it is vague and
ambiguous in that it requests information that may change on a periodic basis without specifying
the time or time period for which the information is sought. Subject to the foregoing general and
specific objections, and without waiving the same, Defendant responds that as of January 17,
2012, there are over 10,000,000 digitized volumes in the HathiTrust Digital Library (“HDL”),
the shared repository of digital collections of institutions participating in the HathiTrust Service.
UM’s library does not currently have an estimate of the number of works in the HDL that are
protected by copyright under the United States Copyright Act, as UM’s efforts to determine the
copyright status of works in the HDL are ongoing.

2.
For each Work listed on Schedule A, provide the following information with
regard to the HathiTrust Digital Copies and Third Party Digital Copies of the Work:
(a)

the title and author of the Work;

(b)

the date the digital copy was created;

(c)

the identity of the source of the digital copy;

(d)

a description of the equipment and method used to create the digital copy;

(e)

a description of the means by which the digital copy was transferred from
its source;
7

A-1034
Case 1:11-cv-06351-HB Document 114-71

Filed 06/29/12 Page 9 of 43

(f)

the type of media (e.g., DVD, flash drive, internal/external hard drive, tape
backup, etc.) on which the digital copy is stored;

(g)

the identity of any computer system connected to media on which the
digital copy is stored;

(h)

the identity of any computer network to which a device storing the digital
copy is connected;

(i)

the Physical Location of the digital copy;

(j)

the Virtual Location of the digital copy;

(k)

the identities of the individual(s) who authorized, directed, supervised,
facilitated and/or participated in the creation of the digital copy, including
each such individual’s name and current address, as well as his or her
employer (at the time of the digitization), job title and role in the creation
of the digital copy;

(l)

the identities of the individual(s) who currently have authorized access to
the Physical Location and/or Virtual Location of the digital copy,
including each such individual’s name and current address, as well as his
or her current employer, title and job description.

RESPONSE:

Defendant objects to Interrogatory No. 2 to the extent that it seeks

information in the possession, custody, or control of third parties and not in Defendant’s or UM’s
possession, custody, or control. Defendant further objects to Interrogatory No. 2 on the ground
that subparts (c) and (e) are vague and ambiguous in that “source” and “transferred from its
source” are not defined and the meaning of such terms is not clear in the context of the
Interrogatory. Defendant also objects to Interrogatory No. 2 on the ground that subparts (g), (h),
(i), and (j) seek Confidential Information regarding the identity of computer systems and
computer networks and regarding the “Physical Location” and “Virtual Location” of digitized
works, and the disclosure of such Confidential Information would compromise the security of the
HDL. Defendant further objects to Interrogatory No. 2 on the ground that subpart (k) is vague
and ambiguous in that “authorized,” “directed,” “supervised,” “facilitated” and “participated” are
not defined and the meaning of such terms is not clear in the context of the Interrogatory.
8

A-1035
Case 1:11-cv-06351-HB Document 114-71

Filed 06/29/12 Page 10 of 43

Defendant also objects to Interrogatory No. 2 as overly broad and unduly burdensome to the
extent that subpart (k) seeks the current address of individuals who were employed by the
University at the time of the digitization but who are no longer employed by the University or
involved in the HathiTrust service. Defendant further objects to Interrogatory No. 2 on the
ground that subpart (l) seeks private and confidential information protected from disclosure by
agreements with other parties, and by federal statutes and regulations.
Subject to the foregoing general and specific objections, and without waiving the same,
Defendant responds that no Third Party Digital Copies of the Works exist and that four
HathiTrust Digital Copies are created and maintained to store and preserve the digitized works in
the HDL: (1) the “Initial HathiTrust Digital Copy” incorporated into the HDL, Michigan, (2) the
“Mirror Site HathiTrust Digital Copy,” (3) the “First Backup Tape HathiTrust Digital Copy,”
and (4) the “Second Backup Tape HathiTrust Digital Copy.” With respect to these HathiTrust
Digital Copies, Defendant provides responses to subparts (a), (b), and (j) in the attached Exhibit
A. Because Defendant’s responses to subparts (c)-(i), (k), and (l) are the same for each Work
listed in Schedule A to Plaintiffs’ First Set of Interrogatories to Defendant HathiTrust (“Schedule
A”) and for Plaintiffs’ convenience, Defendant provides responses to these subparts below.
In response to subparts (c)-(i), Defendant provides the information in the chart below,
which applies to the HathiTrust Digital Copies for each of the Works listed on Schedule A.
Initial HathiTrust
Digital Copy
(c) the identity of
the source of the
digital copy;

Google Return
Interface

(d) a description of
the equipment and
method used to
create the digital

Google Return
Interface.

Mirror Site
HathiTrust Digital
Copy
The Initial
HathiTrust Digital
Copy

First Backup Tape
HathiTrust Digital
Copy
The Initial
HathiTrust Digital
Copy

Second Backup
Tape HathiTrust
Digital Copy
The First Backup
Tape HathiTrust
Digital Copy

Isilon SyncIQ

Tivoli Storage
Manager backup

Internal Tivoli
Storage Manager
replication

9

A-1036
Case 1:11-cv-06351-HB Document 114-71

copy;
(e) a description of
the means by
which the digital
copy was
transferred from
its source;
(f) the type of
media (e.g., DVD,
flash drive,
internal/external
hard drive, tape
backup, etc.) on
which the digital
copy is stored;
(g) the identity of
any computer
system connected
to media on which
the digital copy is
stored;
(h) the identity of
any computer
network to which
a device storing
the digital copy is
connected;
(i) the Physical
Location of the
digital copy;

Filed 06/29/12 Page 11 of 43

Google Return
Interface.

Isilon SyncIQ

Tivoli Storage
Manager backup
protocol

Tivoli Storage
Manager backup
protocol

Isilon Network
Attached Storage

Isilon Network
Attached Storage

Encrypted tape

Encrypted tape

Two HathiTrust
production web
servers, four
HathiTrust ingest
servers, and four
HathiTrust
development web
servers
The HathiTrust
private computer
network and the UM
campus computer
network

Two HathiTrust
production web
servers and two
HathiTrust data set
prep / repository
validation servers

Four UM
Information
Technology Services
Tivoli Storage
Manager servers
located at the
Michigan Academic
Computing Center
The UM campus
computer network

Four UM
Information
Technology Services
Tivoli Storage
Manager servers
located at the Arbor
Lakes Data Facility

Michigan Academic
Computing Center,
Room 100, 1000
Oakbrook Drive,
Ann Arbor,
Michigan

Arbor Lakes Data
Facility, Room 9100,
Arbor Lakes
Building 1, 4251
Plymouth Rd., Ann
Arbor, Michigan

Michigan Academic
Computing Center,
Room 100, 1000
Oakbrook Drive,
Ann Arbor,
Michigan

The HathiTrust
private computer
network and the
Indiana University –
Purdue University
Indianapolis campus
computer network
Informatics &
Communications
Technology
Complex, Room IT
024, 535 West
Michigan Street,
Indianapolis, Indiana

The UM campus
computer network

In response to subpart (k), Defendant provides the information in the chart below, which
applies to the HathiTrust Digital Copies for each of the Works listed on Schedule A. All
individuals identified as employees of UM may be contacted through Defendants’ counsel.
Initial HathiTrust Digital
Copy

Mirror Site HathiTrust
Digital Copy

First Backup Tape
HathiTrust Digital Copy

Second Backup Tape
HathiTrust Digital Copy

By entering the December
14, 2004 Cooperative
Agreement with Google, the
Regents of the University of
Michigan/University

The University of
Michigan Library IT Core
Services staff, namely,
Ezra Brooks, Aaron
Elkiss, Sebastien Korner,

The University of
Michigan Library IT Core
Services staff, namely,
Ezra Brooks, Aaron
Elkiss, Sebastien Korner,

The University of
Michigan Library IT Core
Services staff, namely,
Ezra Brooks, Aaron
Elkiss, Sebastien Korner,

10

A-1037
Case 1:11-cv-06351-HB Document 114-71

Library, Ann Arbor Campus
authorized the creation of
the Initial HathiTrust Digital
Copy. Per the terms of the
Cooperative Agreement,
Google provided the Library
with the ability to obtain the
Initial HathiTrust Digital
Copy.
The University of Michigan
Library IT Core Services
staff, namely, Ezra Brooks,
Aaron Elkiss, Sebastien
Korner, Thomas Mooney,
Ryan Rotter, and Cory
Snavely, all of whom are
employed by the University,
as well as Jessica Feeman,
who was employed as a
University of Michigan
Library IT Core Services
staff member at the time,
were primarily responsible
for obtaining the Initial
HathiTrust Digital Copy
from Google Return
Interface.

Thomas Mooney, Ryan
Rotter, and Cory Snavely,
all of whom are employed
by the University, as well
as Jessica Feeman, who
was employed as a
University of Michigan
Library IT Core Services
staff member at the time,
were primarily responsible
for the creation of the
Mirror Site HathiTrust
Digital Copy using Isilon
SyncIQ.

Filed 06/29/12 Page 12 of 43

Thomas Mooney, Ryan
Rotter, and Cory Snavely,
all of whom are employed
by the University, as well
as Jessica Feeman, who
was employed as a
University of Michigan
Library IT Core Services
staff member at the time,
were primarily responsible
for the creation of the First
Backup Tape HathiTrust
Digital Copy using Tivoli
Storage Backup manager.

Thomas Mooney, Ryan
Rotter, and Cory Snavely,
all of whom are employed
by the University, as well
as Jessica Feeman, who
was employed as a
University of Michigan
Library IT Core Services
staff member at the time,
were primarily responsible
for the creation of the
Second Backup Tape
HathiTrust Digital Copy
using Tivoli Storage
Manager replication.

In response to subpart (l), Defendant provides the information in the chart below, which
applies to the HathiTrust Digital Copies for each of the Works listed on Schedule A as of
February 1, 2012. All individuals identified as employees of UM, the University of Wisconsin,
or Indiana University may be contacted through Defendants’ counsel.

Initial HathiTrust Digital Copy

Ezra Brooks, Aaron Elkiss, Sebastien
Korner, Thomas Mooney, Ryan
Rotter, and Cory Snavely, who are
System Administrators and
Programmers, University of Michigan
Library, are authorized for certain
access to the Physical Location of the
Initial HathiTrust Digital Copy.

Mirror Site HathiTrust Digital
Copy

First Backup
Tape
HathiTrust
Digital Copy

Second Backup
Tape
HathiTrust
Digital Copy

Hafid Adnane, Chad Harris, and
Andrew Poland, System
Administrators, Indiana University,
and Ezra Brooks, Aaron Elkiss,
Sebastien Korner, Thomas Mooney,
Ryan Rotter, and Cory Snavely, who
are System Administrators and
Programmers, University of Michigan
Library, are authorized for certain
access to the Physical Location of the

Mike Garrison,
Cameron
Hanover, Phil
Jessel, David
Nowell, and
Steve Simmons,
who are Tivoli
Storage
Manager
Administrators,

Mike Garrison,
Cameron
Hanover, Phil
Jessel, David
Nowell, and
Steve Simmons,
who are Tivoli
Storage
Manager
Administrators,

11

A-1038
Case 1:11-cv-06351-HB Document 114-71

Filed 06/29/12 Page 13 of 43

Mirror Site HathiTrust Digital Copy.

John Wilkin, Associate University
Librarian, University of Michigan
Library; Zack Lane, Copyright
Researcher, Columbia University,
535 West 114th Street, New York,
New York 10027; Janet Black, Kathy
Marlett, Jo McClamroch, and Sherri
Michaels, Copyright Researchers,
Indiana University; Judith
Ahronheim, David Fulmer, Dennis
McWhinnie, Gregory Nichols, and
Christine Wilcox, Copyright
Researchers, University of Michigan;
Carla Dewey Urban, Copyright
Researcher, University of Minnesota,
3675 Arboretum Drive, Chaska,
Minnesota, 55318; Sue Zuriff,
Copyright Researchers, University of
Minnesota, 309 19th Avenue South,
Minneapolis, Minnesota 55455; Lisa
Nachreiner, Karen Rattunde, Rita
Roemer, and Al Seeger, Copyright
Researchers, University of
Wisconsin; Bobby Glushko,
Copyright Specialist, University of
Michigan Library; Melissa Levine,
Lead Copyright Officer, University of
Michigan Library; Benjamin Tobey,
Lisa Jackson Hardman, Melvin
Whitehead, Neena Adams, Bryan
Birchmeier, Katie Kujala, and Monica
Tsuneishi, Orphan Works
Investigators, University of Michigan
Library; Martin Brennan, Sharon
Farb, Diane Gurman, Leslie
McMichael, and Angela Riggio,
Orphan Works Investigators,
University of California Los Angeles,
Charles E. Young Research Library

University of
Michigan
Information
Technology
Services, are
authorized for
certain access to
the Physical
Location of the
First Backup
Tape HathiTrust
Digital Copy.

University of
Michigan
Information
Technology
Services, are
authorized for
certain access to
the Physical
Location of the
Second Backup
Tape HathiTrust
Digital Copy.

John Wilkin, Associate University
Librarian, University of Michigan
Library; Zack Lane, Copyright
Researcher, Columbia University,
535 West 114th Street, New York,
New York 10027; Janet Black, Kathy
Marlett, Jo McClamroch, and Sherri
Michaels, Copyright Researchers,
Indiana University; Judith
Ahronheim, David Fulmer, Dennis
McWhinnie, Gregory Nichols, and
Christine Wilcox, Copyright
Researchers, University of Michigan;
Carla Dewey Urban, Copyright
Researcher, University of Minnesota,
3675 Arboretum Drive, Chaska,
Minnesota, 55318; Sue Zuriff,
Copyright Researchers, University of
Minnesota, 309 19th Avenue South,
Minneapolis, Minnesota 55455; Lisa
Nachreiner, Karen Rattunde, Rita
Roemer, and Al Seeger, Copyright
Researchers, University of
Wisconsin; Bobby Glushko,
Copyright Specialist, University of
Michigan Library; Melissa Levine,
Lead Copyright Officer, University of
Michigan Library; Benjamin Tobey,
Lisa Jackson Hardman, Melvin
Whitehead, Neena Adams, Bryan
Birchmeier, Katie Kujala, and Monica
Tsuneishi, Orphan Works
Investigators, University of Michigan
Library; Martin Brennan, Sharon
Farb, Diane Gurman, Leslie
McMichael, and Angela Riggio,
Orphan Works Investigators,
University of California Los Angeles,
Charles E. Young Research Library

Ezra Brooks,
Aaron Elkiss,
Sebastien
Korner, Thomas
Mooney, Ryan
Rotter, and
Cory Snavely,
who are System
Administrators
and
Programmers,
University of
Michigan
Library, are
authorized for
certain access to
the Virtual
Location of the
First Backup
Tape HathiTrust
Digital Copy.

Ezra Brooks,
Aaron Elkiss,
Sebastien
Korner, Thomas
Mooney, Ryan
Rotter, and
Cory Snavely,
who are System
Administrators
and
Programmers,
University of
Michigan
Library, are
authorized for
certain access to
the Virtual
Location of the
Second Backup
Tape HathiTrust
Digital Copy.

12

A-1039
Case 1:11-cv-06351-HB Document 114-71

Building, Los Angeles, California
90095-1575; Lara Unger and
Lawrence Wentzel, Digitization
Specialists, University of Michigan
Library; Jackie Bronicki, Image
Quality Researcher, University of
Michigan Library; Emily Campbell,
Martin Knott, Connie McGuire, Liz
Mustard, Chris Powell, and Ellen
Wilson, Librarians, University of
Michigan Library; Shane Beers,
Digital Preservation Specialist,
University of Michigan Library; Tom
West-Burton, Roger Espinosa, Phillip
Farber, Nasir Grewal, Brian Hall, Tim
Prettyman, Pranay Sethi, Peter Ulintz,
and John Weise, Programmers,
University of Michigan Library; Kat
Hagedorn, Project Manager,
University of Michigan Library; Julia
Lovett and Jeremy York, Special
Projects Librarians, University of
Michigan Library; Angelina Zaytsev,
Project Assistant, University of
Michigan Library; Ezra Brooks,
Aaron Elkiss, Sebastien Korner,
Thomas Mooney, Ryan Rotter, and
Cory Snavely, System Administrators
and Programmers, University of
Michigan Library; Suzanne Chapman,
User Interface Specialist, University
of Michigan Library; and 32
University of Michigan students
and/or employees who receive
authorization through the University
of Michigan’s Office of Services for
Students with Disabilities as part of
the reasonable accommodations
provided to them under federal law
are authorized for certain access to
the Virtual Location of the Initial
HathiTrust Digital Copy.

Filed 06/29/12 Page 14 of 43

Building, Los Angeles, California
90095-1575; Lara Unger and
Lawrence Wentzel, Digitization
Specialists, University of Michigan
Library; Jackie Bronicki, Image
Quality Researcher, University of
Michigan Library; Emily Campbell,
Martin Knott, Connie McGuire, Liz
Mustard, Chris Powell, and Ellen
Wilson, Librarians, University of
Michigan Library; Shane Beers,
Digital Preservation Specialist,
University of Michigan Library; Tom
West-Burton, Roger Espinosa, Phillip
Farber, Nasir Grewal, Brian Hall, Tim
Prettyman, Pranay Sethi, Peter Ulintz,
and John Weise, Programmers,
University of Michigan Library; Kat
Hagedorn, Project Manager,
University of Michigan Library; Julia
Lovett and Jeremy York, Special
Projects Librarians, University of
Michigan Library; Angelina Zaytsev,
Project Assistant, University of
Michigan Library; Ezra Brooks,
Aaron Elkiss, Sebastien Korner,
Thomas Mooney, Ryan Rotter, and
Cory Snavely, System Administrators
and Programmers, University of
Michigan Library; Suzanne Chapman,
User Interface Specialist, University
of Michigan Library, and 32
University of Michigan students
and/or employees who receive
authorization through the University
of Michigan’s Office of Services for
Students with Disabilities as part of
the reasonable accommodations
provided to them under federal law
are authorized for certain access to
the Virtual Location of the Second
HathiTrust Digital Copy.

DATED: February 8, 2012

Respectfully Submitted,

Joseph Petersen (JP 9071)
KILPATRICK TOWNSEND & STOCKTON LLP
31 West 52nd Street, 14th Floor
13

A-1040
Case 1:11-cv-06351-HB Document 114-71

Filed 06/29/12 Page 15 of 43

New York, NY 10019
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Joseph M. Beck (admitted pro hac vice)
W. Andrew Pequignot (admitted pro hac vice)
Allison Scott Roach (admitted pro hac vice)
KILPATRICK TOWNSEND & STOCKTON LLP
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants

14

C.L.O.U.D.S. by
Pat Cummings

C.L.O.U.D.S. by
Pat Cummings

(a) the title and
author of the
Work;
Bok-Norge : en
litteratursosiologis
k oversikt by
Trond Andreassen

Filed 06/29/12 Page 16 of 43

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

November 13, 2008

Second Backup Tape
HathiTrust Digital
Copy

October 10, 2009

January 7, 2011

/sdr7/obj/mdp/pairtree_
root/49/01/50/00/89/65/
98/49015000896598/49
015000896598.zip
/sdr7/obj/mdp/pairtree_
root/49/01/50/00/89/65/
98/49015000896598/49
015000896598.zip

/sdr7/obj/mdp/pairtree_
root/49/01/50/00/89/65/
98/49015000896598/49
015000896598.zip

1

/sdr7/obj/mdp/pairtree_
root/49/01/50/00/89/65/
98/49015000896598/49
015000896598.zip

January 7, 2011

January 6, 2011

/sdr18/obj/mdp/pairtree
_root/39/01/50/14/28/0
3/85/39015014280385/
39015014280385.zip

/sdr18/obj/mdp/pairtree
_root/39/01/50/14/28/0
3/85/39015014280385/
39015014280385.zip

/sdr18/obj/mdp/pairtree
_root/39/01/50/14/28/0
3/85/39015014280385/
39015014280385.zip

January 6, 2011

/sdr18/obj/mdp/pairtree
_root/39/01/50/14/28/0
3/85/39015014280385/
39015014280385.zip

October 10, 2009

October 9, 2009

/sdr6/obj/mdp/pairtree_
root/39/01/50/50/52/28/
49/39015050522849/39
015050522849.zip

/sdr6/obj/mdp/pairtree_
root/39/01/50/50/52/28/
49/39015050522849/39
015050522849.zip

/sdr6/obj/mdp/pairtree_
root/39/01/50/50/52/28/
49/39015050522849/39
015050522849.zip

October 9, 2009

/sdr6/obj/mdp/pairtree_
root/39/01/50/50/52/28/
49/39015050522849/39
015050522849.zip

November 13, 2008

First Backup Tape
HathiTrust Digital
Copy

December 1, 2008

Mirror Site
HathiTrust Digital
Copy

October 25, 2007

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1041

Talking With
Artists: Volume 1
by Pat Cummings

Jimmy Lee Did It
by Pat Cummings

(a) the title and
author of the
Work;
Clean Your Room,
Harvey Moon! By
Pat Cummings

Filed 06/29/12 Page 17 of 43

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

January 6, 2011

Second Backup Tape
HathiTrust Digital
Copy

January 20, 2011

September 8, 2009

/sdr16/obj/mdp/pairtree
_root/39/01/50/29/57/0
8/61/39015029570861/
39015029570861.zip
/sdr16/obj/mdp/pairtree
_root/39/01/50/29/57/0
8/61/39015029570861/
39015029570861.zip

/sdr16/obj/mdp/pairtree
_root/39/01/50/29/57/0
8/61/39015029570861/
39015029570861.zip

2

/sdr16/obj/mdp/pairtree
_root/39/01/50/29/57/0
8/61/39015029570861/
39015029570861.zip

September 8, 2009

September 7, 2009

/sdr7/obj/mdp/pairtree_
root/49/01/50/01/47/12/
50/49015001471250/49
015001471250.zip

/sdr7/obj/mdp/pairtree_
root/49/01/50/01/47/12/
50/49015001471250/49
015001471250.zip

/sdr7/obj/mdp/pairtree_
root/49/01/50/01/47/12/
50/49015001471250/49
015001471250.zip

September 7, 2009

/sdr7/obj/mdp/pairtree_
root/49/01/50/01/47/12/
50/49015001471250/49
015001471250.zip

January 20, 2011

January 19, 2011

/sdr7/obj/mdp/pairtree_
root/49/01/50/01/47/07/
32/49015001470732/49
015001470732.zip

/sdr7/obj/mdp/pairtree_
root/49/01/50/01/47/07/
32/49015001470732/49
015001470732.zip

/sdr7/obj/mdp/pairtree_
root/49/01/50/01/47/07/
32/49015001470732/49
015001470732.zip

January 19, 2011

/sdr7/obj/mdp/pairtree_
root/49/01/50/01/47/07/
32/49015001470732/49
015001470732.zip

January 6, 2011

First Backup Tape
HathiTrust Digital
Copy

January 6, 2011

Mirror Site
HathiTrust Digital
Copy

January 6, 2011

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1042

Oss ma‫ޡ‬lvakter
emellan by Erik
Grundstrom

Talking With
Adventurers by Pat
Cummings

(a) the title and
author of the
Work;
Talking With
Artists: Volume 2
by Pat Cummings

Filed 06/29/12 Page 18 of 43

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

October 4, 2009

Second Backup Tape
HathiTrust Digital
Copy

November 28, 2009

February 6, 2010

3

/sdr21/obj/wu/pairtree_
root/89/01/46/79/54/2/8
9014679542/89014679
542.zip

/sdr21/obj/wu/pairtree_
root/89/01/46/79/54/2/8
9014679542/89014679
542.zip

February 7, 2010

/sdr21/obj/wu/pairtree_
root/89/01/46/79/54/2/8
9014679542/89014679
542.zip

February 7, 2010

/sdr19/obj/uc1/pairtree
_root/31/82/20/33/43/6
8/41/31822033436841/
31822033436841.zip

/sdr19/obj/uc1/pairtree
_root/31/82/20/33/43/6
8/41/31822033436841/
31822033436841.zip

/sdr19/obj/uc1/pairtree
_root/31/82/20/33/43/6
8/41/31822033436841/
31822033436841.zip

February 6, 2010

/sdr19/obj/uc1/pairtree
_root/31/82/20/33/43/6
8/41/31822033436841/
31822033436841.zip

November 28, 2009

November 26, 2009

/sdr17/obj/mdp/pairtree
_root/39/01/50/37/76/9
2/65/39015037769265/
39015037769265.zip

/sdr17/obj/mdp/pairtree
_root/39/01/50/37/76/9
2/65/39015037769265/
39015037769265.zip

/sdr17/obj/mdp/pairtree
_root/39/01/50/37/76/9
2/65/39015037769265/
39015037769265.zip

November 26, 2009

/sdr17/obj/mdp/pairtree
_root/39/01/50/37/76/9
2/65/39015037769265/
39015037769265.zip

October 4, 2009

First Backup Tape
HathiTrust Digital
Copy

September 30, 2009

Mirror Site
HathiTrust Digital
Copy

September 30, 2009

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

/sdr21/obj/wu/pairtree_
root/89/01/46/79/54/2/8
9014679542/89014679
542.zip

A-1043

Summer light by
Roxana Robinson

Good troupers all:
the story of Joseph
Jefferson by
Gladys Malvern

(a) the title and
author of the
Work;
Vernacular
Dreams by Angelo
Loukakis

Filed 06/29/12 Page 19 of 43

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;
April 9, 2009

Second Backup Tape
HathiTrust Digital
Copy

February 12, 2011

November 28, 2008

/sdr8/obj/mdp/pairtree_
root/39/01/50/19/34/54/
72/39015019345472/39
015019345472.zip
/sdr8/obj/mdp/pairtree_
root/39/01/50/19/34/54/
72/39015019345472/39
015019345472.zip

/sdr8/obj/mdp/pairtree_
root/39/01/50/19/34/54/
72/39015019345472/39
015019345472.zip

4

/sdr8/obj/mdp/pairtree_
root/39/01/50/19/34/54/
72/39015019345472/39
015019345472.zip

November 28, 2008

/sdr7/obj/uc1/pairtree_r
oot/$b/38/48/70/$b384
870/$b384870.zip

December 10, 2008

/sdr7/obj/uc1/pairtree_r
oot/$b/38/48/70/$b384
870/$b384870.zip

/sdr7/obj/uc1/pairtree_r
oot/$b/38/48/70/$b384
870/$b384870.zip

February 12, 2011

May 31, 2008

/sdr7/obj/uc1/pairtree_r
oot/$b/38/48/70/$b384
870/$b384870.zip

February 10, 2011

/sdr9/obj/mdp/pairtree_
root/39/01/50/30/75/66/
65/39015030756665/39
015030756665.zip

/sdr9/obj/mdp/pairtree_
root/39/01/50/30/75/66/
65/39015030756665/39
015030756665.zip

/sdr9/obj/mdp/pairtree_
root/39/01/50/30/75/66/
65/39015030756665/39
015030756665.zip

February 10, 2011

/sdr9/obj/mdp/pairtree_
root/39/01/50/30/75/66/
65/39015030756665/39
015030756665.zip

April 9, 2009

First Backup Tape
HathiTrust Digital
Copy

April 8, 2009

Mirror Site
HathiTrust Digital
Copy

April 8, 2009

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1044

A glimpse of
scarlet and other
stories by Roxana
Robinson

A glimpse of
scarlet and other
stories by Roxana
Robinson

(a) the title and
author of the
Work;
Georgia O'Keeffe:
a life by Roxana
Robinson

Filed 06/29/12 Page 20 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

November 26, 2008

Second Backup Tape
HathiTrust Digital
Copy

November 11, 2009

5

January 27, 2010

January 29, 2010

/sdr4/obj/mdp/pairtree_
root/39/01/50/22/00/81/
09/39015022008109/39
015022008109.zip

/sdr4/obj/mdp/pairtree_
root/39/01/50/22/00/81/
09/39015022008109/39
015022008109.zip

January 27, 2010

/sdr4/obj/mdp/pairtree_
root/39/01/50/22/00/81/
09/39015022008109/39
015022008109.zip

November 11, 2009

January 29, 2010

/sdr4/obj/mdp/pairtree_
root/39/01/50/22/00/81/
09/39015022008109/39
015022008109.zip

November 11, 2009

/sdr8/obj/mdp/pairtree_
root/39/01/50/15/44/99/
14/39015015449914/39
015015449914.zip

/sdr8/obj/mdp/pairtree_
root/39/01/50/15/44/99/
14/39015015449914/39
015015449914.zip

/sdr8/obj/mdp/pairtree_
root/39/01/50/15/44/99/
14/39015015449914/39
015015449914.zip

November 11, 2009

/sdr8/obj/mdp/pairtree_
root/39/01/50/15/44/99/
14/39015015449914/39
015015449914.zip

November 26, 2008

First Backup Tape
HathiTrust Digital
Copy

December 10, 2008

Mirror Site
HathiTrust Digital
Copy

January 26, 2008

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1045

A perfect stranger:
and other stories
by Roxana
Robinson

Sweetwater : a
novel by Roxana
Robinson

Asking for love
and other stories
by Roxana
Robinson

(a) the title and
author of the
Work;

Filed 06/29/12 Page 21 of 43

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

October 26, 2008

Second Backup Tape
HathiTrust Digital
Copy
/sdr21/obj/mdp/pairtree
_root/39/01/50/21/56/2
7/42/39015021562742/
39015021562742.zip

November 20, 2008

/sdr6/obj/mdp/pairtree_
root/39/01/50/56/79/32/
87/39015056793287/39
015056793287.zip
/sdr6/obj/mdp/pairtree_
root/39/01/50/56/79/32/
87/39015056793287/39
015056793287.zip

/sdr6/obj/mdp/pairtree_
root/39/01/50/56/79/32/
87/39015056793287/39
015056793287.zip

6

/sdr6/obj/mdp/pairtree_
root/39/01/50/56/79/32/
87/39015056793287/39
015056793287.zip

November 20, 2008

December 10, 2008

/sdr5/obj/mdp/pairtree_
root/39/01/50/37/47/07/
24/39015037470724/39
015037470724.zip

/sdr5/obj/mdp/pairtree_
root/39/01/50/37/47/07/
24/39015037470724/39
015037470724.zip

/sdr5/obj/mdp/pairtree_
root/39/01/50/37/47/07/
24/39015037470724/39
015037470724.zip

July 19, 2008

/sdr5/obj/mdp/pairtree_
root/39/01/50/37/47/07/
24/39015037470724/39
015037470724.zip

October 26, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr21/obj/mdp/pairtree
_root/39/01/50/21/56/2
7/42/39015021562742/
39015021562742.zip

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr21/obj/mdp/pairtree
_root/39/01/50/21/56/2
7/42/39015021562742/
39015021562742.zip

May 31, 2008

/sdr21/obj/mdp/pairtree
_root/39/01/50/21/56/2
7/42/39015021562742/
39015021562742.zip

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1046

Dødsdom over et
folk? :
imperialismen og
Biafrakonflikten
by Helge Ronning

Den umulige
friheten : Henrik
Ibsen og
moderniteten by
Helge Ronning

(a) the title and
author of the
Work;

Filed 06/29/12 Page 22 of 43

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

January 5, 2010

December 19, 2009

7

/sdr21/obj/uc1/pairtree
_root/b2/84/22/01/b284
2201/b2842201.zip

/sdr21/obj/uc1/pairtree
_root/b2/84/22/01/b284
2201/b2842201.zip

/sdr21/obj/uc1/pairtree
_root/b2/84/22/01/b284
2201/b2842201.zip

December 19, 2009

/sdr21/obj/uc1/pairtree
_root/b2/84/22/01/b284
2201/b2842201.zip

December 19, 2009

/sdr21/obj/wu/pairtree_
root/89/09/20/04/95/1/8
9092004951/89092004
951.zip

/sdr21/obj/wu/pairtree_
root/89/09/20/04/95/1/8
9092004951/89092004
951.zip

/sdr21/obj/wu/pairtree_
root/89/09/20/04/95/1/8
9092004951/89092004
951.zip

December 19, 2009

/sdr21/obj/wu/pairtree_
root/89/09/20/04/95/1/8
9092004951/89092004
951.zip

January 5, 2010

/sdr9/obj/mdp/pairtree_
root/39/01/50/60/83/84/
90/39015060838490/39
015060838490.zip

/sdr9/obj/mdp/pairtree_
root/39/01/50/60/83/84/
90/39015060838490/39
015060838490.zip

/sdr9/obj/mdp/pairtree_
root/39/01/50/60/83/84/
90/39015060838490/39
015060838490.zip

January 4, 2010

Second Backup Tape
HathiTrust Digital
Copy
December 18, 2008

First Backup Tape
HathiTrust Digital
Copy
December 18, 2008

Mirror Site
HathiTrust Digital
Copy
December 10, 2008

January 4, 2010

/sdr9/obj/mdp/pairtree_
root/39/01/50/60/83/84/
90/39015060838490/39
015060838490.zip

September 23, 2008

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1047

Southern light : a
novel by J.R.
Salamanca

Marguerite Duras
à Montréal by
André Roy

(a) the title and
author of the
Work;
Marguerite Duras
à Montréal by
André Roy

Filed 06/29/12 Page 23 of 43

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

October 29, 2008

Second Backup Tape
HathiTrust Digital
Copy

August 22, 2010

April 9, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/48/88/1
6/46/39015048881646/
39015048881646.zip
/sdr10/obj/mdp/pairtree
_root/39/01/50/48/88/1
6/46/39015048881646/
39015048881646.zip

/sdr10/obj/mdp/pairtree
_root/39/01/50/48/88/1
6/46/39015048881646/
39015048881646.zip

8

/sdr10/obj/mdp/pairtree
_root/39/01/50/48/88/1
6/46/39015048881646/
39015048881646.zip

April 9, 2009

April 9, 2009

/sdr20/obj/uc1/pairtree
_root/32/10/60/08/36/5
0/97/32106008365097/
32106008365097.zip

/sdr20/obj/uc1/pairtree
_root/32/10/60/08/36/5
0/97/32106008365097/
32106008365097.zip

/sdr20/obj/uc1/pairtree
_root/32/10/60/08/36/5
0/97/32106008365097/
32106008365097.zip

April 9, 2009

/sdr20/obj/uc1/pairtree
_root/32/10/60/08/36/5
0/97/32106008365097/
32106008365097.zip

August 22, 2010

August 22, 2010

/sdr10/obj/mdp/pairtree
_root/39/01/50/10/73/5
1/19/39015010735119/
39015010735119.zip

/sdr10/obj/mdp/pairtree
_root/39/01/50/10/73/5
1/19/39015010735119/
39015010735119.zip

/sdr10/obj/mdp/pairtree
_root/39/01/50/10/73/5
1/19/39015010735119/
39015010735119.zip

August 22, 2010

/sdr10/obj/mdp/pairtree
_root/39/01/50/10/73/5
1/19/39015010735119/
39015010735119.zip

October 29, 2008

First Backup Tape
HathiTrust Digital
Copy

December 10, 2008

Mirror Site
HathiTrust Digital
Copy

October 20, 2008

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1048

A sea change by
J.R. Salamanca

The lost country: a
novel by J.R.
Salamanca

(a) the title and
author of the
Work;
Embarkation by
J.R. Salamanca

Filed 06/29/12 Page 24 of 43

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;
March 26, 2009

Second Backup Tape
HathiTrust Digital
Copy

April 3, 2009

October 14, 2008

/sdr2/obj/mdp/pairtree_
root/39/01/50/02/75/43/
59/39015002754359/39
015002754359.zip

/sdr2/obj/mdp/pairtree_
root/39/01/50/02/75/43/
59/39015002754359/39
015002754359.zip

9

/sdr2/obj/mdp/pairtree_
root/39/01/50/02/75/43/
59/39015002754359/39
015002754359.zip

December 10, 2008

/sdr2/obj/mdp/pairtree_
root/39/01/50/02/75/43/
59/39015002754359/39
015002754359.zip

October 14, 2008

/sdr2/obj/mdp/pairtree_
root/39/01/50/02/75/45/
32/39015002754532/39
015002754532.zip

/sdr2/obj/mdp/pairtree_
root/39/01/50/02/75/45/
32/39015002754532/39
015002754532.zip

/sdr2/obj/mdp/pairtree_
root/39/01/50/02/75/45/
32/39015002754532/39
015002754532.zip

August 14, 2008

/sdr2/obj/mdp/pairtree_
root/39/01/50/02/75/45/
32/39015002754532/39
015002754532.zip

April 3, 2009

April 3, 2009

/sdr7/obj/mdp/pairtree_
root/39/01/50/02/75/43/
42/39015002754342/39
015002754342.zip

/sdr7/obj/mdp/pairtree_
root/39/01/50/02/75/43/
42/39015002754342/39
015002754342.zip

/sdr7/obj/mdp/pairtree_
root/39/01/50/02/75/43/
42/39015002754342/39
015002754342.zip

April 3, 2009

/sdr7/obj/mdp/pairtree_
root/39/01/50/02/75/43/
42/39015002754342/39
015002754342.zip

March 26, 2009

First Backup Tape
HathiTrust Digital
Copy

March 25, 2009

Mirror Site
HathiTrust Digital
Copy

March 25, 2009

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1049

Embarkation by
J.R. Salamanca

Lilith by J.R.
Salamanca

Lilith by J.R.
Salamanca

(a) the title and
author of the
Work;
That summer’s
trance : a novel
by J.R. Salamanca

Filed 06/29/12 Page 25 of 43

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

October 31, 2008

Second Backup Tape
HathiTrust Digital
Copy

December 5, 2008

November 4, 2010

10

/sdr15/obj/uc1/pairtree
_root/b4/08/47/83/b408
4783/b4084783.zip

/sdr15/obj/uc1/pairtree
_root/b4/08/47/83/b408
4783/b4084783.zip

/sdr15/obj/uc1/pairtree
_root/b4/08/47/83/b408
4783/b4084783.zip

November 5, 2010

/sdr15/obj/uc1/pairtree
_root/b4/08/47/83/b408
4783/b4084783.zip

November 5, 2010

/sdr7/obj/mdp/pairtree_
root/39/01/50/02/75/43/
67/39015002754367/39
015002754367.zip

/sdr7/obj/mdp/pairtree_
root/39/01/50/02/75/43/
67/39015002754367/39
015002754367.zip

/sdr7/obj/mdp/pairtree_
root/39/01/50/02/75/43/
67/39015002754367/39
015002754367.zip

November 4, 2010

/sdr7/obj/mdp/pairtree_
root/39/01/50/02/75/43/
67/39015002754367/39
015002754367.zip

December 5, 2008

December 10, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/42/95/4
3/08/39015042954308/
39015042954308.zip

/sdr10/obj/mdp/pairtree
_root/39/01/50/42/95/4
3/08/39015042954308/
39015042954308.zip

/sdr10/obj/mdp/pairtree
_root/39/01/50/42/95/4
3/08/39015042954308/
39015042954308.zip

May 22, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/42/95/4
3/08/39015042954308/
39015042954308.zip

October 31, 2008

First Backup Tape
HathiTrust Digital
Copy

December 10, 2008

Mirror Site
HathiTrust Digital
Copy

October 31, 2008

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1050

Southern light : a
novel by J.R.
Salamanca

A sea change by
J.R. Salamanca

The lost country: a
novel by J.R.
Salamanca

(a) the title and
author of the
Work;

Filed 06/29/12 Page 26 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

September 18, 2010

/sdr8/obj/uc1/pairtree_r
oot/b4/35/87/48/b4358
748/b4358748.zip

Mirror Site
HathiTrust Digital
Copy
March 8, 2011

March 10, 2011

/sdr15/obj/uc1/pairtree
_root/b4/35/87/49/b435
8749/b4358749.zip

11

September 15, 2010

September 15, 2010

September 15, 2010

/sdr8/obj/uc1/pairtree_r
oot/b4/35/87/50/b4358
750/b4358750.zip

/sdr8/obj/uc1/pairtree_r
oot/b4/35/87/50/b4358
750/b4358750.zip

/sdr8/obj/uc1/pairtree_r
oot/b4/35/87/50/b4358
750/b4358750.zip

September 15, 2010

/sdr8/obj/uc1/pairtree_r
oot/b4/35/87/50/b4358
750/b4358750.zip

March 10, 2011

/sdr15/obj/uc1/pairtree
_root/b4/35/87/49/b435
8749/b4358749.zip

September 19, 2010

/sdr8/obj/uc1/pairtree_r
oot/b4/35/87/48/b4358
748/b4358748.zip

Second Backup Tape
HathiTrust Digital
Copy
March 10, 2011

March 8, 2011

/sdr15/obj/uc1/pairtree
_root/b4/35/87/49/b435
8749/b4358749.zip

September 19, 2010

/sdr8/obj/uc1/pairtree_r
oot/b4/35/87/48/b4358
748/b4358748.zip

First Backup Tape
HathiTrust Digital
Copy
March 10, 2011

March 8, 2011

/sdr15/obj/uc1/pairtree
_root/b4/35/87/49/b435
8749/b4358749.zip

September 18, 2010

/sdr8/obj/uc1/pairtree_r
oot/b4/35/87/48/b4358
748/b4358748.zip

March 8, 2011

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1051

Jesse James : last
rebel of the Civil
War by T.J. Stiles

Je cours plus vite
que la lycose :
poèmes by Danièle
Simpson

Oberammergau by
James Shapiro

(a) the title and
author of the
Work;

Filed 06/29/12 Page 27 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

October 31, 2008

Second Backup Tape
HathiTrust Digital
Copy
/sdr15/obj/uc1/pairtree
_root/b4/35/87/51/b435
8751/b4358751.zip

April 22, 2010

January 5, 2009

12

January 5, 2009

/sdr23/obj/wu/pairtree_
root/89/01/03/18/53/3/8
9010318533/89010318
533.zip

/sdr23/obj/wu/pairtree_
root/89/01/03/18/53/3/8
9010318533/89010318
533.zip

January 5, 2009

/sdr23/obj/wu/pairtree_
root/89/01/03/18/53/3/8
9010318533/89010318
533.zip

April 24, 2010

January 5, 2009

/sdr23/obj/wu/pairtree_
root/89/01/03/18/53/3/8
9010318533/89010318
533.zip

April 24, 2010

/sdr10/obj/mdp/pairtree
_root/39/01/50/42/55/3
1/34/39015042553134/
39015042553134.zip

/sdr10/obj/mdp/pairtree
_root/39/01/50/42/55/3
1/34/39015042553134/
39015042553134.zip

/sdr10/obj/mdp/pairtree
_root/39/01/50/42/55/3
1/34/39015042553134/
39015042553134.zip

April 22, 2010

/sdr10/obj/mdp/pairtree
_root/39/01/50/42/55/3
1/34/39015042553134/
39015042553134.zip

October 31, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr15/obj/uc1/pairtree
_root/b4/35/87/51/b435
8751/b4358751.zip

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr15/obj/uc1/pairtree
_root/b4/35/87/51/b435
8751/b4358751.zip

October 24, 2008

/sdr15/obj/uc1/pairtree
_root/b4/35/87/51/b435
8751/b4358751.zip

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1052

Puffball : a novel
by Fay Weldon

Praxis : a novel by
Fay Weldon

Watching me,
watching you by
Fay Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 28 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

December 2, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr11/obj/mdp/pairtree
_root/39/01/50/55/82/3
2/00/39015055823200/
39015055823200.zip

December 10, 2008

/sdr11/obj/mdp/pairtree
_root/39/01/50/16/98/1
7/58/39015016981758/
39015016981758.zip

13

December 10, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/01/78/8
5/49/39015001788549/
39015001788549.zip

October 31, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/01/78/8
5/49/39015001788549/
39015001788549.zip

October 27, 2008

/sdr11/obj/mdp/pairtree
_root/39/01/50/16/98/1
7/58/39015016981758/
39015016981758.zip

December 2, 2008

/sdr11/obj/mdp/pairtree
_root/39/01/50/55/82/3
2/00/39015055823200/
39015055823200.zip

Initial HathiTrust
Digital Copy

November 3, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/01/78/8
5/49/39015001788549/
39015001788549.zip

October 28, 2008

/sdr11/obj/mdp/pairtree
_root/39/01/50/16/98/1
7/58/39015016981758/
39015016981758.zip

December 3, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr11/obj/mdp/pairtree
_root/39/01/50/55/82/3
2/00/39015055823200/
39015055823200.zip

November 3, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/01/78/8
5/49/39015001788549/
39015001788549.zip

October 28, 2008

/sdr11/obj/mdp/pairtree
_root/39/01/50/16/98/1
7/58/39015016981758/
39015016981758.zip

December 3, 2008

Second Backup Tape
HathiTrust Digital
Copy
/sdr11/obj/mdp/pairtree
_root/39/01/50/55/82/3
2/00/39015055823200/
39015055823200.zip

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1053

The hearts and
lives of men by
Fay Weldon

The heart of the
country by Fay
Weldon

Remember me by
Fay Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 29 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtree
_root/39/01/50/01/52/6
8/16/39015001526816/
39015001526816.zip

December 10, 2008

/sdr7/obj/mdp/pairtree_
root/39/01/50/04/12/41/
89/39015004124189/39
015004124189.zip

14

November 3, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/12/99/2
6/19/39015012992619/
39015012992619.zip

November 3, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/12/99/2
6/19/39015012992619/
39015012992619.zip

October 31, 2008

/sdr7/obj/mdp/pairtree_
root/39/01/50/04/12/41/
89/39015004124189/39
015004124189.zip

July 19, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/01/52/6
8/16/39015001526816/
39015001526816.zip

Initial HathiTrust
Digital Copy

November 4, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/12/99/2
6/19/39015012992619/
39015012992619.zip

November 3, 2008

/sdr7/obj/mdp/pairtree_
root/39/01/50/04/12/41/
89/39015004124189/39
015004124189.zip

December 6, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtree
_root/39/01/50/01/52/6
8/16/39015001526816/
39015001526816.zip

November 4, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/12/99/2
6/19/39015012992619/
39015012992619.zip

November 3, 2008

/sdr7/obj/mdp/pairtree_
root/39/01/50/04/12/41/
89/39015004124189/39
015004124189.zip

December 6, 2008

Second Backup Tape
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtree
_root/39/01/50/01/52/6
8/16/39015001526816/
39015001526816.zip

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1054

The heart of the
country by Fay
Weldon

The Shrapnel
Academy by Fay
Weldon

The rules of life by
Fay Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 30 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr8/obj/mdp/pairtree_
root/39/01/50/12/99/54/
89/39015012995489/39
015012995489.zip

December 10, 2008

/sdr8/obj/mdp/pairtree_
root/39/01/50/12/98/86/
74/39015012988674/39
015012988674.zip

15

October 11, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/14/72/2
4/10/39015014722410/
39015014722410.zip

October 11, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/14/72/2
4/10/39015014722410/
39015014722410.zip

October 31, 2008

/sdr8/obj/mdp/pairtree_
root/39/01/50/12/98/86/
74/39015012988674/39
015012988674.zip

July 19, 2008

/sdr8/obj/mdp/pairtree_
root/39/01/50/12/99/54/
89/39015012995489/39
015012995489.zip

Initial HathiTrust
Digital Copy

October 13, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/14/72/2
4/10/39015014722410/
39015014722410.zip

November 3, 2008

/sdr8/obj/mdp/pairtree_
root/39/01/50/12/98/86/
74/39015012988674/39
015012988674.zip

November 17, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr8/obj/mdp/pairtree_
root/39/01/50/12/99/54/
89/39015012995489/39
015012995489.zip

October 13, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/14/72/2
4/10/39015014722410/
39015014722410.zip

November 3, 2008

/sdr8/obj/mdp/pairtree_
root/39/01/50/12/98/86/
74/39015012988674/39
015012988674.zip

November 17, 2008

Second Backup Tape
HathiTrust Digital
Copy
/sdr8/obj/mdp/pairtree_
root/39/01/50/12/99/54/
89/39015012995489/39
015012995489.zip

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1055

The cloning of
Joanna May by
Fay Weldon

The fat woman’s
joke by Fay
Weldon

Sacred cows by
Fay Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 31 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

June 15, 2009

Mirror Site
HathiTrust Digital
Copy
/sdr4/obj/mdp/pairtree_
root/39/01/50/25/81/37/
37/39015025813737/39
015025813737.zip

December 10, 2008

/sdr13/obj/mdp/pairtree
_root/39/01/50/47/56/1
6/03/39015047561603/
39015047561603.zip

16

December 10, 2008

/sdr8/obj/mdp/pairtree_
root/39/01/50/19/98/21/
18/39015019982118/39
015019982118.zip

October 31, 2008

/sdr8/obj/mdp/pairtree_
root/39/01/50/19/98/21/
18/39015019982118/39
015019982118.zip

July 19, 2008

/sdr13/obj/mdp/pairtree
_root/39/01/50/47/56/1
6/03/39015047561603/
39015047561603.zip

June 15, 2009

/sdr4/obj/mdp/pairtree_
root/39/01/50/25/81/37/
37/39015025813737/39
015025813737.zip

Initial HathiTrust
Digital Copy

November 3, 2008

/sdr8/obj/mdp/pairtree_
root/39/01/50/19/98/21/
18/39015019982118/39
015019982118.zip

November 29, 2008

/sdr13/obj/mdp/pairtree
_root/39/01/50/47/56/1
6/03/39015047561603/
39015047561603.zip

June 18, 2009

First Backup Tape
HathiTrust Digital
Copy
/sdr4/obj/mdp/pairtree_
root/39/01/50/25/81/37/
37/39015025813737/39
015025813737.zip

November 3, 2008

/sdr8/obj/mdp/pairtree_
root/39/01/50/19/98/21/
18/39015019982118/39
015019982118.zip

November 29, 2008

/sdr13/obj/mdp/pairtree
_root/39/01/50/47/56/1
6/03/39015047561603/
39015047561603.zip

June 18, 2009

Second Backup Tape
HathiTrust Digital
Copy
/sdr4/obj/mdp/pairtree_
root/39/01/50/25/81/37/
37/39015025813737/39
015025813737.zip

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1056

The cloning of
Joanna May by
Fay Weldon

Darcy’s utopia by
Fay Weldon

Little sisters by
Fay Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 32 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtree
_root/39/01/50/14/75/3
8/52/39015014753852/
39015014753852.zip

November 3, 2008

/sdr8/obj/mdp/pairtree_
root/39/01/50/15/51/98/
15/39015015519815/39
015015519815.zip

17

January 27, 2010

January 29, 2010

January 29, 2010

/sdr10/obj/mdp/pairtree
_root/39/01/50/18/93/3
4/92/39015018933492/
39015018933492.zip

/sdr10/obj/mdp/pairtree
_root/39/01/50/18/93/3
4/92/39015018933492/
39015018933492.zip

/sdr10/obj/mdp/pairtree
_root/39/01/50/18/93/3
4/92/39015018933492/
39015018933492.zip

January 27, 2010

/sdr10/obj/mdp/pairtree
_root/39/01/50/18/93/3
4/92/39015018933492/
39015018933492.zip

November 3, 2008

/sdr8/obj/mdp/pairtree_
root/39/01/50/15/51/98/
15/39015015519815/39
015015519815.zip

November 26, 2008

Second Backup Tape
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtree
_root/39/01/50/14/75/3
8/52/39015014753852/
39015014753852.zip

December 10, 2008

/sdr8/obj/mdp/pairtree_
root/39/01/50/15/51/98/
15/39015015519815/39
015015519815.zip

November 26, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtree
_root/39/01/50/14/75/3
8/52/39015014753852/
39015014753852.zip

October 31, 2008

/sdr8/obj/mdp/pairtree_
root/39/01/50/15/51/98/
15/39015015519815/39
015015519815.zip

May 9, 2007

/sdr10/obj/mdp/pairtree
_root/39/01/50/14/75/3
8/52/39015014753852/
39015014753852.zip

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1057

Growing rich by
Fay Weldon

Life force by Fay
Weldon

Moon over
Minneapolis/Why
she couldn't stay
by Fay Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 33 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

November 3, 2008

Second Backup Tape
HathiTrust Digital
Copy
/sdr21/obj/mdp/pairtree
_root/39/01/50/19/43/7
3/78/39015019437378/
39015019437378.zip

November 3, 2009

November 3, 2009

18

November 3, 2009

/sdr6/obj/mdp/pairtree_
root/39/01/50/56/89/04/
63/39015056890463/39
015056890463.zip

/sdr6/obj/mdp/pairtree_
root/39/01/50/56/89/04/
63/39015056890463/39
015056890463.zip

November 4, 2009

/sdr6/obj/mdp/pairtree_
root/39/01/50/56/89/04/
63/39015056890463/39
015056890463.zip

November 4, 2009

November 4, 2009

/sdr6/obj/mdp/pairtree_
root/39/01/50/56/89/04/
63/39015056890463/39
015056890463.zip

November 4, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/21/99/1
3/62/39015021991362/
39015021991362.zip

/sdr10/obj/mdp/pairtree
_root/39/01/50/21/99/1
3/62/39015021991362/
39015021991362.zip

/sdr10/obj/mdp/pairtree
_root/39/01/50/21/99/1
3/62/39015021991362/
39015021991362.zip

November 3, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/21/99/1
3/62/39015021991362/
39015021991362.zip

November 3, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr21/obj/mdp/pairtree
_root/39/01/50/19/43/7
3/78/39015019437378/
39015019437378.zip

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr21/obj/mdp/pairtree
_root/39/01/50/19/43/7
3/78/39015019437378/
39015019437378.zip

October 31, 2008

/sdr21/obj/mdp/pairtree
_root/39/01/50/19/43/7
3/78/39015019437378/
39015019437378.zip

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1058

Affliction by Fay
Weldon

Trouble by Fay
Weldon

Life force by Fay
Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 34 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

February 14, 2009

Mirror Site
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtree
_root/39/01/50/25/20/0
7/29/39015025200729/
39015025200729.zip

January 29, 2010

/sdr10/obj/mdp/pairtree
_root/39/01/50/55/16/6
1/96/39015055166196/
39015055166196.zip

19

December 10, 2008

November 12, 2008

November 12, 2008

/sdr21/obj/mdp/pairtree
_root/39/01/50/32/71/9
4/48/39015032719448/
39015032719448.zip

/sdr21/obj/mdp/pairtree
_root/39/01/50/32/71/9
4/48/39015032719448/
39015032719448.zip

/sdr21/obj/mdp/pairtree
_root/39/01/50/32/71/9
4/48/39015032719448/
39015032719448.zip

July 19, 2008

/sdr21/obj/mdp/pairtree
_root/39/01/50/32/71/9
4/48/39015032719448/
39015032719448.zip

January 29, 2010

/sdr10/obj/mdp/pairtree
_root/39/01/50/55/16/6
1/96/39015055166196/
39015055166196.zip

February 14, 2009

Second Backup Tape
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtree
_root/39/01/50/25/20/0
7/29/39015025200729/
39015025200729.zip

January 27, 2010

/sdr10/obj/mdp/pairtree
_root/39/01/50/55/16/6
1/96/39015055166196/
39015055166196.zip

February 14, 2009

First Backup Tape
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtree
_root/39/01/50/25/20/0
7/29/39015025200729/
39015025200729.zip

January 27, 2010

/sdr10/obj/mdp/pairtree
_root/39/01/50/55/16/6
1/96/39015055166196/
39015055166196.zip

February 14, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/25/20/0
7/29/39015025200729/
39015025200729.zip

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1059

Leader of the band
by Fay Weldon

Wicked women :
stories by Fay
Weldon

Splitting by Fay
Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 35 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

November 3, 2009

Mirror Site
HathiTrust Digital
Copy
/sdr6/obj/mdp/pairtree_
root/39/01/50/34/41/08/
63/39015034410863/39
015034410863.zip

October 3, 2010

/sdr6/obj/mdp/pairtree_
root/39/01/50/34/89/79/
45/39015034897945/39
015034897945.zip

20

December 10, 2008

/sdr4/obj/mdp/pairtree_
root/49/01/50/02/45/16/
73/49015002451673/49
015002451673.zip

July 19, 2008

/sdr4/obj/mdp/pairtree_
root/49/01/50/02/45/16/
73/49015002451673/49
015002451673.zip

October 31, 2010

/sdr6/obj/mdp/pairtree_
root/39/01/50/34/89/79/
45/39015034897945/39
015034897945.zip

November 3, 2009

/sdr6/obj/mdp/pairtree_
root/39/01/50/34/41/08/
63/39015034410863/39
015034410863.zip

Initial HathiTrust
Digital Copy

November 18, 2008

/sdr4/obj/mdp/pairtree_
root/49/01/50/02/45/16/
73/49015002451673/49
015002451673.zip

November 4, 2010

/sdr6/obj/mdp/pairtree_
root/39/01/50/34/89/79/
45/39015034897945/39
015034897945.zip

November 4, 2009

First Backup Tape
HathiTrust Digital
Copy
/sdr6/obj/mdp/pairtree_
root/39/01/50/34/41/08/
63/39015034410863/39
015034410863.zip

November 18, 2008

/sdr4/obj/mdp/pairtree_
root/49/01/50/02/45/16/
73/49015002451673/49
015002451673.zip

November 4, 2010

/sdr6/obj/mdp/pairtree_
root/39/01/50/34/89/79/
45/39015034897945/39
015034897945.zip

November 4, 2009

Second Backup Tape
HathiTrust Digital
Copy
/sdr6/obj/mdp/pairtree_
root/39/01/50/34/41/08/
63/39015034410863/39
015034410863.zip

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1060

A hard time to be a
father: a collection
of short stories by
Fay Weldon

The hearts and
lives of men by
Fay Weldon

Growing rich by
Fay Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 36 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr6/obj/mdp/pairtree_
root/39/01/50/55/10/98/
16/39015055109816/39
015055109816.zip

December 10, 2008

/sdr6/obj/mdp/pairtree_
root/39/01/50/55/10/99/
72/39015055109972/39
015055109972.zip

21

December 10, 2008

/sdr6/obj/mdp/pairtree_
root/39/01/50/55/10/99/
64/39015055109964/39
015055109964.zip

October 31, 2008

/sdr6/obj/mdp/pairtree_
root/39/01/50/55/10/99/
64/39015055109964/39
015055109964.zip

July 19, 2008

/sdr6/obj/mdp/pairtree_
root/39/01/50/55/10/99/
72/39015055109972/39
015055109972.zip

July 19, 2008

/sdr6/obj/mdp/pairtree_
root/39/01/50/55/10/98/
16/39015055109816/39
015055109816.zip

Initial HathiTrust
Digital Copy

November 1, 2008

/sdr6/obj/mdp/pairtree_
root/39/01/50/55/10/99/
64/39015055109964/39
015055109964.zip

November 18, 2008

/sdr6/obj/mdp/pairtree_
root/39/01/50/55/10/99/
72/39015055109972/39
015055109972.zip

November 18, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr6/obj/mdp/pairtree_
root/39/01/50/55/10/98/
16/39015055109816/39
015055109816.zip

November 1, 2008

/sdr6/obj/mdp/pairtree_
root/39/01/50/55/10/99/
64/39015055109964/39
015055109964.zip

November 18, 2008

/sdr6/obj/mdp/pairtree_
root/39/01/50/55/10/99/
72/39015055109972/39
015055109972.zip

November 18, 2008

Second Backup Tape
HathiTrust Digital
Copy
/sdr6/obj/mdp/pairtree_
root/39/01/50/55/10/98/
16/39015055109816/39
015055109816.zip

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1061

Big women by Fay
Weldon

Nothing to wear
and nowhere to
hide: stories by
Fay Weldon

Life force by Fay
Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 37 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtree
_root/39/01/50/55/10/9
8/24/39015055109824/
39015055109824.zip

December 10, 2008

/sdr4/obj/mdp/pairtree_
root/39/01/50/29/18/60/
64/39015029186064/39
015029186064.zip

22

December 10, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/55/85/9
6/00/39015055859600/
39015055859600.zip

July 19, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/55/85/9
6/00/39015055859600/
39015055859600.zip

October 31, 2008

/sdr4/obj/mdp/pairtree_
root/39/01/50/29/18/60/
64/39015029186064/39
015029186064.zip

July 19, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/55/10/9
8/24/39015055109824/
39015055109824.zip

Initial HathiTrust
Digital Copy

November 29, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/55/85/9
6/00/39015055859600/
39015055859600.zip

November 1, 2008

/sdr4/obj/mdp/pairtree_
root/39/01/50/29/18/60/
64/39015029186064/39
015029186064.zip

November 10, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtree
_root/39/01/50/55/10/9
8/24/39015055109824/
39015055109824.zip

November 29, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/55/85/9
6/00/39015055859600/
39015055859600.zip

November 1, 2008

/sdr4/obj/mdp/pairtree_
root/39/01/50/29/18/60/
64/39015029186064/39
015029186064.zip

November 10, 2008

Second Backup Tape
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtree
_root/39/01/50/55/10/9
8/24/39015055109824/
39015055109824.zip

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1062

The Bulgari
connection by Fay
Weldon

Rhode Island blues
by Fay Weldon

Godless in Eden :
a book of essays
by Fay Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 38 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr8/obj/mdp/pairtree_
root/39/01/50/40/36/71/
49/39015040367149/39
015040367149.zip

December 10, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/48/57/8
2/34/39015048578234/
39015048578234.zip

23

December 10, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/49/52/4
4/27/39015049524427/
39015049524427.zip

July 19, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/49/52/4
4/27/39015049524427/
39015049524427.zip

October 27, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/48/57/8
2/34/39015048578234/
39015048578234.zip

October 31, 2008

/sdr8/obj/mdp/pairtree_
root/39/01/50/40/36/71/
49/39015040367149/39
015040367149.zip

Initial HathiTrust
Digital Copy

November 17, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/49/52/4
4/27/39015049524427/
39015049524427.zip

October 31, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/48/57/8
2/34/39015048578234/
39015048578234.zip

October 31, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr8/obj/mdp/pairtree_
root/39/01/50/40/36/71/
49/39015040367149/39
015040367149.zip

November 17, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/49/52/4
4/27/39015049524427/
39015049524427.zip

October 31, 2008

/sdr10/obj/mdp/pairtree
_root/39/01/50/48/57/8
2/34/39015048578234/
39015048578234.zip

October 31, 2008

Second Backup Tape
HathiTrust Digital
Copy
/sdr8/obj/mdp/pairtree_
root/39/01/50/40/36/71/
49/39015040367149/39
015040367149.zip

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1063

Wicked women :
stories by Fay
Weldon

Flood warning : a
play by Fay
Weldon

Auto da fay by Fay
Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 39 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

November 11, 2009

Mirror Site
HathiTrust Digital
Copy
/sdr6/obj/mdp/pairtree_
root/39/01/50/53/74/68/
41/39015053746841/39
015053746841.zip

July 10, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/55/18/1
5/75/39015055181575/
39015055181575.zip

24

January 27, 2010

/sdr14/obj/mdp/pairtree
_root/39/01/50/58/11/8
7/98/39015058118798/
39015058118798.zip

January 27, 2010

/sdr14/obj/mdp/pairtree
_root/39/01/50/58/11/8
7/98/39015058118798/
39015058118798.zip

July 10, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/55/18/1
5/75/39015055181575/
39015055181575.zip

November 11, 2009

/sdr6/obj/mdp/pairtree_
root/39/01/50/53/74/68/
41/39015053746841/39
015053746841.zip

Initial HathiTrust
Digital Copy

January 29, 2010

/sdr14/obj/mdp/pairtree
_root/39/01/50/58/11/8
7/98/39015058118798/
39015058118798.zip

July 10, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/55/18/1
5/75/39015055181575/
39015055181575.zip

November 12, 2009

First Backup Tape
HathiTrust Digital
Copy
/sdr6/obj/mdp/pairtree_
root/39/01/50/53/74/68/
41/39015053746841/39
015053746841.zip

January 29, 2010

/sdr14/obj/mdp/pairtree
_root/39/01/50/58/11/8
7/98/39015058118798/
39015058118798.zip

July 10, 2009

/sdr10/obj/mdp/pairtree
_root/39/01/50/55/18/1
5/75/39015055181575/
39015055181575.zip

November 12, 2009

Second Backup Tape
HathiTrust Digital
Copy
/sdr6/obj/mdp/pairtree_
root/39/01/50/53/74/68/
41/39015053746841/39
015053746841.zip

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1064

The spa
decameron by Fay
Weldon

She may not leave
by Fay Weldon

Mantrapped by
Fay Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 40 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr21/obj/mdp/pairtree
_root/39/01/50/41/77/0
9/52/39015041770952/
39015041770952.zip

December 18, 2008

/sdr9/obj/mdp/pairtree_
root/39/01/50/60/12/34/
14/39015060123414/39
015060123414.zip

25

December 10, 2008

December 19, 2008

December 19, 2008

/sdr9/obj/mdp/pairtree_
root/39/01/50/62/61/12/
42/39015062611242/39
015062611242.zip

/sdr9/obj/mdp/pairtree_
root/39/01/50/62/61/12/
42/39015062611242/39
015062611242.zip

/sdr9/obj/mdp/pairtree_
root/39/01/50/62/61/12/
42/39015062611242/39
015062611242.zip

September 22, 2008

/sdr9/obj/mdp/pairtree_
root/39/01/50/62/61/12/
42/39015062611242/39
015062611242.zip

December 18, 2008

/sdr9/obj/mdp/pairtree_
root/39/01/50/60/12/34/
14/39015060123414/39
015060123414.zip

December 18, 2008

Second Backup Tape
HathiTrust Digital
Copy
/sdr21/obj/mdp/pairtree
_root/39/01/50/41/77/0
9/52/39015041770952/
39015041770952.zip

December 10, 2008

/sdr9/obj/mdp/pairtree_
root/39/01/50/60/12/34/
14/39015060123414/39
015060123414.zip

December 18, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr21/obj/mdp/pairtree
_root/39/01/50/41/77/0
9/52/39015041770952/
39015041770952.zip

October 2, 2008

/sdr9/obj/mdp/pairtree_
root/39/01/50/60/12/34/
14/39015060123414/39
015060123414.zip

September 21, 2008

/sdr21/obj/mdp/pairtree
_root/39/01/50/41/77/0
9/52/39015041770952/
39015041770952.zip

Initial HathiTrust
Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1065

Life force by Fay
Weldon

Big women by Fay
Weldon

The hearts and
lives of men by
Fay Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 41 of 43

(b) the date the
digital copy was
created;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

September 2, 2010

Mirror Site
HathiTrust Digital
Copy
/sdr9/obj/mdp/pairtree_
root/39/01/50/70/73/93/
81/39015070739381/39
015070739381.zip

September 1, 2010

/sdr20/obj/uc1/pairtree
_root/32/10/60/07/94/0
5/51/32106007940551/
32106007940551.zip

26

September 2, 2010

/sdr20/obj/uc1/pairtree
_root/32/10/60/14/72/0
5/74/32106014720574/
32106014720574.zip

September 2, 2010

/sdr20/obj/uc1/pairtree
_root/32/10/60/14/72/0
5/74/32106014720574/
32106014720574.zip

September 1, 2010

/sdr20/obj/uc1/pairtree
_root/32/10/60/07/94/0
5/51/32106007940551/
32106007940551.zip

September 2, 2010

/sdr9/obj/mdp/pairtree_
root/39/01/50/70/73/93/
81/39015070739381/39
015070739381.zip

Initial HathiTrust
Digital Copy

September 3, 2010

/sdr20/obj/uc1/pairtree
_root/32/10/60/14/72/0
5/74/32106014720574/
32106014720574.zip

September 3, 2010

/sdr20/obj/uc1/pairtree
_root/32/10/60/07/94/0
5/51/32106007940551/
32106007940551.zip

September 3, 2010

First Backup Tape
HathiTrust Digital
Copy
/sdr9/obj/mdp/pairtree_
root/39/01/50/70/73/93/
81/39015070739381/39
015070739381.zip

September 3, 2010

/sdr20/obj/uc1/pairtree
_root/32/10/60/14/72/0
5/74/32106014720574/
32106014720574.zip

September 3, 2010

/sdr20/obj/uc1/pairtree
_root/32/10/60/07/94/0
5/51/32106007940551/
32106007940551.zip

September 3, 2010

Second Backup Tape
HathiTrust Digital
Copy
/sdr9/obj/mdp/pairtree_
root/39/01/50/70/73/93/
81/39015070739381/39
015070739381.zip

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1066

Worst fears by Fay
Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 42 of 43

(b) the date the
digital copy was
created;
(j) the Virtual
Location of the
digital copy;

(j) the Virtual
Location of the
digital copy;

September 2, 2010

Mirror Site
HathiTrust Digital
Copy
/sdr20/obj/uc1/pairtree
_root/32/10/60/11/83/5
0/37/32106011835037/
32106011835037.zip

/sdr20/obj/uc1/pairtree
_root/32/10/60/13/24/8
2/05/32106013248205/
32106013248205.zip

27

/sdr20/obj/uc1/pairtree
_root/32/10/60/13/24/8
2/05/32106013248205/
32106013248205.zip

September 2, 2010

/sdr20/obj/uc1/pairtree
_root/32/10/60/11/83/5
0/37/32106011835037/
32106011835037.zip

Initial HathiTrust
Digital Copy

/sdr20/obj/uc1/pairtree
_root/32/10/60/13/24/8
2/05/32106013248205/
32106013248205.zip

September 3, 2010

First Backup Tape
HathiTrust Digital
Copy
/sdr20/obj/uc1/pairtree
_root/32/10/60/11/83/5
0/37/32106011835037/
32106011835037.zip

/sdr20/obj/uc1/pairtree
_root/32/10/60/13/24/8
2/05/32106013248205/
32106013248205.zip

September 3, 2010

Second Backup Tape
HathiTrust Digital
Copy
/sdr20/obj/uc1/pairtree
_root/32/10/60/11/83/5
0/37/32106011835037/
32106011835037.zip

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant HathiTrust
Interrogatory No. 2

Case 1:11-cv-06351-HB Document 114-71

A-1067

I A-1068 I
Case 1:11-cv-06351-HB Document 114-71

Filed 06/29/12 Page 43 of 43

VERIFICATION
I, Paul N. Courant, pursuant to 28 U.S.C. § 1746, declare as follows:
1.

I am University Librarian and Dean of Libraries at The University of Michigan

(“UM”).
2.

All of the information provided in the attached Responses to Plaintiffs’ First Set

of Interrogatories to Defendant HathiTrust has been gathered from various employees of UM.
3.

I am informed and believe that the best efforts of those employees have been

employed in procuring the information, and on that basis I am informed and believe that the
information is true and correct.
I declare under the penalty of perjury that the foregoing is true and correct.
Executed this 8th day of February, 2012.

_________________________________
Paul N. Courant

A-1069
Case 1:11-cv-06351-HB Document 114-72

Filed 06/29/12 Page 1 of 8

EXHIBIT 72

A-1070
Case 1:11-cv-06351-HB Document 114-72

Filed 06/29/12 Page 2 of 8

KILPATRICK TOWNSEND & STOCKTON LLP
Joseph Petersen (JP 9071)
Robert Potter (RP 5757)
1114 Avenue of the Americas
New York, New York 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: (404) S15-6500
Facsimile: [phone]
Email: [e-mail]

Attorneys/or Defendants

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TIlE AUTHORS GUILD, INC., ET AL.,
Case No. 11 Civ. 6351 (HB)
Plaintiffs,

v.
HATHITRUST, ET AL.,
Defendants.

SUPPLEMENTAL RESPONSE
TO PLAINTIFFS' FIRST SET OF
INTERROGA TORIES TO
DEFENDANT HATHITRUST

A-1071
Case 1:11-cv-06351-HB Document 114-72

Filed 06/29/12 Page 3 of 8

Defendant Mary Sue Coleman ("Defendant") , in her official capacity as President of The
University of Michigan (the "University") and on behalf of the HathiTrust service, hereby
supplements Defendant' s Responses to Plaintiffs' First Set ofInterrogatories to Defendant
HathiTrust, served on Plaintiffs on February 8, 2012 (the " Initial Responses") by stating the
following supplemental response to Interrogatory No.2 of Plaintiffs ' First Set ofIntenogatories
to Defendant HathiTrust ("Interrogatories") pursuant to Rules 26 and 33 of the Federal Rules of
Civil Procedure (" FRCP") and the Local Rules of the United States District Courts for the
Southern and Eastern Districts of New York (the " Local Rules") and based upon information
provided to her by employees of the University with personal knowledge of the relevant facts.
Defendant incorporates by reference the "General Objections and Limitations" and the "Specific
Objections and Limitations" asserted in the Initial Responses as if such objections were fully
stated herein.

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO.2
2.
For each Work listed on Schedule A, provide the following information with
regard to the Master Digital Copy, Master University Copy and all Secondary University Copies,
HathiTrust Digital Copies and Third Party Digital Copies of the Work:
(a)

the title and author of the Work;

(b)

the date the digital copy was created;

(c)

the identity of the source of the digital copy;

(d)

a description of the equipment and method used to create the digital copy;

(e)

a description of the means by which the digital copy was transferred from
its source;

(f)

the type of media (e.g, DVD, flash drive, internal/external hard drive, tape
backup, etc.) on which the digital copy is stored;

(g)

the identity of any computer system connected to media on which the
digital copy is stored;

2

A-1072
Case 1:11-cv-06351-HB Document 114-72

Filed 06/29/12 Page 4 of 8

(h)

the identity of any computer network to which a device storing the digital
copy is connected;

(i)

the Physical Location of the digital copy;

G)

the Virtual Location of the digital copy;

(k)

the identities of the individual(s) who authorized, directed, supervised,
facilitated and/or participated in the creation of the digital copy, including
each such individual's name and current address, as well as his or her
employer (at the time ofthe digitization), job title and role in the creation
of the digital copy;

(I)

the identities of the individual(s) who currently have authorized access to
the Physical Location and/or Virtual Location of the digital copy,
including each such individual's name and current address, as well as his
or her current employer, title and job description.

RESPONSE:

Defendant incorporates by reference each of the general and specific

objections made to Interrogatory No.2 in the Initial Responses as if such objections were fully
stated herein. Defendant further objects to Interrogatory No.2 on the grounds that it is vague
and ambiguous to the extent that it seeks responses regarding digital copies containing
"substantially all" of a Master Print Copy of a Work listed on Schedule A to the Interrogatories
("Schedule A") in that "substantially all" is not defined and the meaning of such term is not clear
in the context of the Interrogatories, and to thc extent it Icaves unclcar whether automatically
generated binary index files, created to facilitate the full-text search functionality over the shared
repository of digital collections of institutions participating in the HathiTrust Service (the
"HathiTrust Digital Library" or "HDL) are responsive to the Interrogatories, particularly where
the infomlation sought in certain Interrogatories is inapplicable to such types of files or is unduly
burdensome to collect and aggregate given the nature of such files.
Subject to the foregoing general and specific objections, and without waiving the same,
Defendant responds that the University employs, for purposes of providing effective search
functionality, an application that automatically generates binary index files. A set of these index
3

A-1073
Case 1:11-cv-06351-HB Document 114-72

Filed 06/29/12 Page 5 of 8

files is created at the HathiTrust server location in Ann Arbor, Michigan and is automatically
synchronized to the HathiTrust server location in Indianapolis, Indiana.
With respect to subpart (a), Defendant refers Plaintiffs to her response to Interrogatory
No. 2(a) in the Initial Responses , which identifies the title and author information requested.
Defendant objects to subpart (b) on the ground that it is unduly hurdensome to the extent
that it seeks a specific date on which each Work on Schedule A was automatically indexed. The
index files are updated and synchronized continuously to reflect the contents of the HDL.
For subparts (c) - (f) and (i) Defendant responds that the index files at Ann Arbor and at
Indianapolis are automatically created by operation of Solr Large-Scale Indexing Processers
based on various file components of the digital works incorporated into the HDL at Ann Arbor.
These index files are stored on Isilon Network Attached Storage at the Michigan Academic
Computing Center ("MACC"), Room 100, I 000 Oakbrook Drive, Ann Arbor, Michigan and at
the Informatics & Communications Technology Complex ("ICTC"), Room IT 024,535 West
Michigan Street, Indianapolis, Indiana. The University has entered into written agreements with
four companies- EBSCO Publishing, Inc., Ex Libris Ltd., OCLC Online Computer Library
Center, Tnc. , and Pro Quest LLC- that make digital databases and related search capabilities
available to specified educational institutions (the " Search Entities"). Under these agreements,
the Search Entities obtain binary index files from the University through secured network
transmission for the limited purpose of search only.
For subparts (g) - (h), Defendant responds that the Isilon Network Attached Storage
server hard drives in Ann Arbor are connected to HathiTrust indexing servers, search servers,
production web servers, ingest servers, development web servers, the HathiTrust private
computer network, and the University campus computer network; the Isilon Network Attached

4

A-1074
Case 1:11-cv-06351-HB Document 114-72

Filed 06/29/12 Page 6 of 8

Storage server hard drives in Indianapolis arc connected to HathiTrust search servers, production
web servers, data set prop/repository validation servers, the HathiTrust private computer
network, and the Indiana University-Purdue University Indianapolis campus computer network.
Defendant objects to subpart (j) on the ground that it is not reasonably calculated to lead
to the discovery of admissible evidence and is unduly burdensome in that the index is
fragmented into individual shards stored across numerous servers and determining the location of
the index files associated with a particular work would be unduly burdensome .
For subpart (k), Defendant responds that the index files arc created and synchronized
automatically . For subpart (I) , Defendant responds that the following individuals, all of whom
are employed by the University and may be contacted through Defendants' counsel, have some
form of access to the viliuallocation of the indexes at Ann Arbor and Indianapolis, and that the
Search Entities obtain index files through rsync.
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

Ezra Brooks, System administrator and programmer
Tom Burton-West, Progranmler
William Dueber, Programmer
Aaron Elkiss, System administrator and programmer
Roger Espinosa, Programmer
Phil Farber, Programmer
Nasir Grewal, Programmer
Brian Hall, Programmer
Seth Johnson, Programmer
Sebastien Korner, System administrator and programmer
Tom Mooney, System administrator and programmer
Chris Powell, Programmer
Timothy Prettyman, Programmer,
Ryan Rotter, System administrator and programmer
Pranay Sethi, Progranmler
Cory Snavely, System administrator and programmer
Peter Ulintz, Programmer
Jeremy York, Special projects librarian

5

A-1075
Case 1:11-cv-06351-HB Document 114-72

Filed 06/29/12 Page 7 of 8

The individuals with access to the physical location of the indexes at Ann Arbor and Indianapolis
are those identified in Interrogatory No. 2(1) in the Initial Responses.
DATED: April 9, 2012

Respectfully Submitted,

Joseph Petersen (JP 9071)
Robert Potter (RP 5757)
KILPATRICK TOWNSEND & STOCKTON LLP
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)
KILPATRICK TOWNSEND & STOCKTON LLP
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]
Email: jbeck@kilpatricktownsend .com
Attorneysfor Defendants

6

A-1076
Case 1:11-cv-06351-HB Document 114-72

Filed 06/29/12 Page 8 of 8

VERIFICA TION
I, Paul N. Courant, pursuant to 28 V.S.c. § 1746, declare as follows:
1.

I am University Librarian and Dean of Libraries at The University of Michigan

(the "University").
2.

All of the information provided in the attached Supplemental Response to

Plaintiffs' First Set ofInterrogatories to Defendant HathiTmst has been gathered from various
employees of the University.
3.

I am informed and believe that the best efforts of those employees have been

employed in procuring the infonnation, and on that basis 1 am informed and believe that the
information is true and correct.
I declare under the penalty of perjury that the foregoing is true and correct.
Executed this 9th day of April, 2012.

Paul N. Courant

7

A-1077
Case 1:11-cv-06351-HB Document 114-73

Filed 06/29/12 Page 1 of 19

EXHIBIT 73

A-1078
Case 1:11-cv-06351-HB Document 114-73

Filed 06/29/12 Page 2 of 19

KILPATRICK TOWNSEND & STOCKTON LLP
Joseph Petersen (JP 9071)
31 West 52nd Street, 14th Floor
New York, New York 10019
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Joseph M. Beck (admitted pro hac vice)
W. Andrew Pequignot (admitted pro hac vice)
Allison Scott Roach (admitted pro hac vice)
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE AUTHORS GUILD, INC., ET AL.,
Case No. 11 Civ. 6351 (HB)
Plaintiffs,
v.
HATHITRUST, ET AL.,
Defendants.

RESPONSES TO PLAINTIFFS’
FIRST SET OF
INTERROGATORIES
TO DEFENDANT
MARK G. YUDOF

A-1079
Case 1:11-cv-06351-HB Document 114-73

Filed 06/29/12 Page 3 of 19

Defendant Mark G. Yudof (“Defendant”), in his official capacity as President of The
University of California (the “University”) states the following objections and responses to
Plaintiffs’ First Set of Interrogatories to Defendant Mark G. Yudof pursuant to Rules 26 and 33
of the Federal Rules of Civil Procedure (“FRCP”) and the Local Rules of the United States
District Courts for the Southern and Eastern Districts of New York (the “Local Rules”) and
based upon information provided to him by employees of the University with personal
knowledge of the relevant facts.
A.

GENERAL OBJECTIONS AND LIMITATIONS
1.

Defendant’s discovery and investigation of the facts of this proceeding are

continuing. These Interrogatory responses are based on information gathered as of the date of
these responses. Defendant reserves the right to amend or supplement his responses when and if
additional information is obtained, as required by the FRCP.
2.

Defendant objects to each of Plaintiffs’ definitions and instructions to the extent

they impose burdens and requirements on Defendant that are inconsistent with or beyond those
set forth in the FRCP or the Local Rules.
3.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent they impose burdens and requirements on Defendant that are inconsistent with or
beyond those set forth in the FRCP or the Local Rules.
4.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that the information sought is protected from disclosure by (a) agreements with
other parties, including, but not limited to, confidentiality agreements, (b) court order, or (c)
statute, regulation, administrative order or case law.
5.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

2

A-1080
Case 1:11-cv-06351-HB Document 114-73

Filed 06/29/12 Page 4 of 19

to the extent that the information sought is commercially sensitive proprietary and/or confidential
information and trade secrets (“Confidential Information”). Defendant will provide nonprivileged, responsive Confidential Information only pursuant to the Protective Order in place in
this litigation.
6.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that the information sought was prepared in anticipation of litigation, constitutes
attorney work product, discloses mental impressions, conclusions, opinions, or legal theories of
Defendant’s attorneys, contains privileged attorney-client communications (including but not
limited to those subject to the common interest or joint defense privilege) or is otherwise
protected from disclosure under applicable privileges, law, or rules, or because such information
is not properly discoverable under the FRCP or the Local Rules. Any disclosure of such
protected or privileged information in any response is inadvertent and shall not constitute a
waiver of such privilege, protection or immunity.
7.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that the information sought is (a) not in Defendant’s, the University’s, or the
Library’s possession, custody, or control, (b) in the possession, custody, or control of Plaintiffs,
(c) publicly available, or (d) as equally available and/or readily accessible to Plaintiffs as it is to
Defendant. These interrogatory responses are based on a reasonably diligent search for and
review of information in those areas within Defendant’s, the University’s, and the Library’s
direct knowledge, custody, or control where information of the type requested would be expected
to be found, and Defendant disclaims any obligation to solicit information from any other parties
in responding to the Interrogatories.

3

A-1081
Case 1:11-cv-06351-HB Document 114-73

8.

Filed 06/29/12 Page 5 of 19

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent they are vague, ambiguous, and/or contain terms that are undefined or otherwise
unclear.
9.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that the information sought is irrelevant to the subject matter of this action and to
the extent that the Interrogatories are not reasonably calculated to lead to the discovery of
admissible evidence.
10.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that they prematurely call for the disclosure of information that Defendant may
obtain through discovery.
11.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

insofar as they assume disputed facts or legal conclusions. To the extent any interrogatory
assumes disputed facts or legal conclusions, Defendant denies such disputed facts or legal
conclusions. Any response or objection by Defendant with respect to any such Interrogatory is
without prejudice to this objection and Defendant’s right to dispute facts and legal conclusions
assumed by the Interrogatories.
12.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent they fail to contain defined time periods or limits, or seek information outside of the
relevant time period. In particular, Defendant objects to all demands in the Interrogatories that
require Defendant to search for, produce, disclose or identify information without any limitation
as to time. Unless otherwise indicated in a particular Interrogatory or the response thereto,
Defendant’s responses refer only to the time period between October 6, 2008 and October 6,
2011.

4

A-1082
Case 1:11-cv-06351-HB Document 114-73

13.

Filed 06/29/12 Page 6 of 19

No objection or limitation, or lack thereof, made in these responses and objections

shall be deemed an admission by Defendant as to the existence or nonexistence of information.
14.

Defendant’s responses to the Interrogatories are made without prejudice to the

assertion of additional objections and responses by him at a later date or to Defendant’s right to
supplement, modify, or amend his responses as appropriate, and to rely upon and produce
evidence during trial or at any other proceeding that may be held in this action.
15.

Defendant reserves the right to object on any ground at any time to a demand for

further response, and reserves the right to revise, supplement, correct, or add to these responses.
Defendant expressly reserves any and all rights and privileges under the FRCP, the Local Rules,
and any other law or rule, and the failure to assert such rights and privileges shall not constitute a
waiver thereof, either with respect to these responses or with respect to any future discovery
responses or objections.
16.

Defendant incorporates by reference these General Objections into each of the

Responses and Specific Objections set forth below, as if fully set forth in each of them.
B.

SPECIFIC OBJECTIONS AND LIMITATIONS
DEFINITIONS
1.

Defendant objects to Plaintiffs’ definition of “University” as overly broad and

unduly burdensome in that it includes “each of its subsidiaries, divisions and affiliates,
principals, officers, directors, members, employees, agents and attorneys,” which refers to
thousands of individuals, the vast majority of which have no knowledge of and have had no
involvement in the activities that are the subject of Plaintiffs’ claims in this action.
2.

Defendant objects to Plaintiffs’ definition of “Library” on the ground that it is

vague and ambiguous.

5

A-1083
Case 1:11-cv-06351-HB Document 114-73

3.

Filed 06/29/12 Page 7 of 19

Defendant objects to Plaintiffs’ definition of “Master Print Copy” and to each

Interrogatory including that term as vague and ambiguous in that Plaintiffs’ definition of “Master
Print Copy” refers to each “original print copy” without identifying the meaning of “original.”
As used in Plaintiffs’ Interrogatories and theses responses, Defendant understands “Master Print
Copy” to refer to a print copy of a Work purchased or otherwise acquired through lawful means
by the University.
4.

Defendant objects to Plaintiffs’ definition of “Master Digital Copy” and to each

Interrogatory including that term on the ground that they presume the existence of certain digital
copies that may not exist, or that may exist in the possession, custody, or control of third parties
and without Defendant’s, the University’s, or the Library’s knowledge. Defendant further
objects to Plaintiffs’ definition of “Master Digital Copy” and to each Interrogatory including that
term to the extent that they seek information in the possession, custody, or control of third parties
and not in the possession, custody, or control of Defendant, the University, or the Library.
Defendant states that upon information and belief Google prepared a “Master Digital Copy” of
each Work listed on Schedule A to Plaintiffs’ First Set of Interrogatories to Defendant Mark G.
Yudof (“Schedule A”) based on Master Print Copies, but further information concerning such
Master Digital Copies lies with third parties and is not in Defendant’s possession, custody, or
control.
5.

Defendant objects to Plaintiffs’ definitions of “Master University Copy” and

“Secondary University Copies” on the ground that they presume the existence of certain digital
copies that do not exist. Defendant states that the University did not receive from Google a
digital copy of any of the Works listed in Schedule A.
6.

Defendant objects to Plaintiffs’ definition of “HathiTrust Digital Copies” and to

6

A-1084
Case 1:11-cv-06351-HB Document 114-73

Filed 06/29/12 Page 8 of 19

each Interrogatory including that term on the ground that they presume the existence of certain
digital copies that may not exist, or that may exist in the possession, custody, or control of third
parties and without Defendant’s, the University’s, or the Library’s knowledge. Defendant further
objects to Plaintiffs’ definition of “HathiTrust Digital Copy” and to each Interrogatory including
that term to the extent that they seek information in the possession, custody, or control of third
parties and not in the possession, custody, or control of Defendant, the University, or the Library.
Defendant states that the Library requested that Google provide to the University of Michigan
library digital copies of each of the Works listed on Schedule A based on Master Print Copies
and, on information and belief, these digital works are now a part of the HathiTrust Digital
Library, but further information concerning such digital copies lies with third parties and is not in
the possession, custody, or control of Defendant, the University, or the Library.
7.

Defendant objects to Plaintiffs’ definition of “Third Party Digital Copies” and to

each Interrogatory including that term on the ground that they presume the existence of certain
digital copies that may not exist, or that may exist in the possession, custody, or control of third
parties and without Defendant’s, the University’s, or the Library’s knowledge. Defendant further
objects to Plaintiff’s definition of “Third Party Digital Copies” and to each Interrogatory
including that term as overly broad to the extent Plaintiffs’ definition includes digital copies
created from the Master Digital Copy or digital copies thereof because, as described above, the
Master Digital Copy and information concerning the Master Digital Copy are with third parties
and are not in the possession, custody, or control of Defendant, the Library, or the University.
INSTRUCTIONS
8.

Defendant objects to Paragraph 1 of Plaintiffs’ “Instructions” to the extent that it

impermissibly seeks to impose burdens and requirements beyond those set forth in the FRCP 26

7

A-1085
Case 1:11-cv-06351-HB Document 114-73

Filed 06/29/12 Page 9 of 19

and 33 by requiring responses to the Interrogatories based upon the knowledge of, and
information available to, parties other than the party upon which the Interrogatories are served,
and Defendant disclaims any obligation to solicit information from any other parties in
responding to the Interrogatories Defendant further objects to this definition because it could
potentially refer to thousands of individuals, the vast majority of which have no knowledge of
and have had no involvement in the activities that are the subject of Plaintiffs’ claims in this
action, and in this regard is overly broad, unduly burdensome, seeks irrelevant information and is
not reasonably calculated to lead to the discovery of admissible evidence.
RESPONSES TO INTERROGATORIES
1.
For each Work listed on Schedule A, separately identify the total number of (i)
print and (ii) digital copies the Library created of each Master Print Copy it owns.
RESPONSE: Defendant objects to Interrogatory No. 1 on the ground that it is vague and
ambiguous in that it requests information without specifying the time or time period for which
the information is sought. Subject to the foregoing general and specific objections, and without
waiving the same, Defendant responds that as of February 8, 2012, the Library has not created
any print or digital copies from a Master Print Copy of any Work listed on Schedule A.
Defendant further responds that the Library prepared for shipment to one of Google’s scanning
centers a Master Print Copy of each Work listed in Schedule A and, upon information and belief,
Google prepared one or more digital copies of each Work listed on Schedule A based on Master
Print Copies.

2.
For each Master Print Copy of a Work listed on Schedule A that the University
caused to be digitized, (i) describe the method by which the Library selected, identified,
collected and transported the Master Print Copy for digitization, and (ii) identify the individuals
(a) who directed or performed each of the foregoing actions, and (b) to whom the Master Print
Copy was delivered for digitization.
8

A-1086
Case 1:11-cv-06351-HB Document 114-73

Filed 06/29/12 Page 10 of 19

RESPONSE: Defendant objects to Interrogatory No. 2 on the ground that it is vague and
ambiguous in that “caused to be digitized” is not defined and the meaning of this phrase is not
clear in the context of the Interrogatory. Defendant further objects to Interrogatory No. 2 to the
extent it seeks the identity of individuals who directed or performed actions that were not
directed or performed by Defendant, the University, or the Library. Subject to the foregoing
general and specific objections, and without waiving the same, Defendant responds as follows:
(i)

In certain instances, the Library collected works for digitization shelf by shelf

and, subject to the work’s physical dimensions (very large or small works are not appropriate for
the digitizing equipment used) and other operational considerations (e.g. the availability of
relevant staff), selected works from each shelf, including the following Works listed on Schedule
A:
Good troupers all: the story of Joseph Jefferson, by Gladys Malvern (Macrae Smith
Company)
Dødsom over et folk? Imperialismen og Biafrakonflikten, by Helge Rønning (Pax)
Lilith, by J.R. Salamanca (Simon & Schuster)
Embarkation, by J.R. Salamanca (Knopf)
The lost country: a novel, by J. R. Salamanca (Simon & Schuster)
A sea change, by J.R. Salamanca (Knopf)
Southern light, by J.R. Salamanca (Knopf)
In other instances, the Library self-selected certain candidate works for digitization
through its facility at University of California San Diego, which included the following Work
listed on Schedule A:
Talking with adventurers, by Christina M. Allen, Pat Cummings, and Linda C.
Cummings (National Geographic Society).
In other instances, Google Inc. (“Google”) provided the Library with a list of candidate
works for digitization, which included the following Works listed on Schedule A:
Marguerite Duras a Montreal, by André Roy (Editions Spirale)
The hearts and lives of men, by Fay Weldon (Heinemann)
Big women, by Fay Weldon (Flamingo)
9

A-1087
Case 1:11-cv-06351-HB Document 114-73

Filed 06/29/12 Page 11 of 19

Life force, by Fay Weldon (Penguin Books)
Worst fears, by Fay Weldon (Flamingo)
The Library’s staff retrieved the Master Print Copy of each Work on Schedule A and
prepared them for shipment to one of Google’s scanning centers. Google arranged for
transportation of the Master Print Copies from, and back to, the Library.
(ii)

(a)

For each of the foregoing actions that was directed or performed by the

Library, the individuals who were primarily responsible for such actions were Ivy Anderson,
Director of Collection Development and Management at the California Digital Library, and
Heather Christenson, Mass Digitization Project Manager at the California Digital Library.
Additional individuals who shared responsibility for such actions in connection with a specific
Work(s) listed on Schedule A are as follows:
-

Bernie Hurley, Director, Northern Regional Library Facility, for:

Good troupers all: the story of Joseph Jefferson, by Gladys Malvern
Dødsom over et folk? Imperialismen og Biafrakonflikten, by Helge Rønning
Lilith, by J.R. Salamanca
Embarkation, by J.R. Salamanca
The lost country: a novel, by J. R. Salamanca
A sea change, by J.R. Salamanca
Southern light, by J.R. Salamanca
-

Martha Hruska, Associate University Librarian for Collection Services,

University of California San Diego, for:
Talking with adventurers, by Christina M. Allen, Pat Cummings, and Linda C.
Cummings
For each of the foregoing actions that was directed or performed by Google, the
individuals who were primarily responsible for such actions in whole and/or in part are, upon
information and belief, Jodi Healy-Pritchett, Library Partner Manager for Google; Todd Flynn,
Library Partner Manager for Google; Kurt Groetsch, Collections Specialist for Google; and
Robert Nagle, Manager, Book Search Operations for Google.
10

A-1088
Case 1:11-cv-06351-HB Document 114-73

(b)

Filed 06/29/12 Page 12 of 19

A Master Print Copy of each Work on Schedule A was delivered to

Google for digitization.

3.
For each Work listed on Schedule A, provide the following information with
regard to the Master Digital Copy, Master University Copy, and all Secondary University
Copies, HathiTrust Digital Copies and Third Party Digital Copies of the Work:
a.

the title and author of the Work;

b.

the date the digital copy was created;

c.

the identity of the source of the digital copy;

d.

a description of the equipment and method used to create the digital copy;

e.

a description of the means by which the digital copy was transferred from
its source;

f.

the type of media (e.g., DVD, flash drive, internal/external hard drive, tape
backup, etc.) on which the digital copy is stored;

g.

the identity of any computer system connected to media on which the
digital copy is stored;

h.

the identity of any computer network to which a device storing the digital
copy is connected;

i.

the Physical Location of the digital copy;

j.

the Virtual Location of the digital copy;

k.

the identities of the individual(s) who authorized, directed, supervised,
facilitated and/or participated in the creation of the digital copy, including
each such individual’s name and current address, as well as his or her
employer (at the time of the digitization), job title and role in the creation
of the digital copy;

l.

the identities of the individual(s) who currently have authorized access to
the Physical Location and/or Virtual Location of the digital copy,
including each such individual’s name and current address, as well as his
or her current employer, title and job description.

RESPONSE: Defendant objects to Interrogatory No. 3 on the ground that it presumes
the existence of certain digital copies that may not exist, or that may exist in the possession,
11

A-1089
Case 1:11-cv-06351-HB Document 114-73

Filed 06/29/12 Page 13 of 19

custody, or control of third parties and without Defendant’s knowledge. Defendant further
objects to Interrogatory No. 3 to the extent that it seeks information in the possession, custody, or
control of third parties and not in the possession, custody, or control of Defendant, the University
or the Library. Defendant further objects to Interrogatory No. 3 on the grounds that subparts (c)
and (e) are vague and ambiguous in that “source” and “transferred from its source” are not
defined and the meaning of such terms is not clear in the context of the Interrogatory. Defendant
also objects to Interrogatory No. 3 on the grounds that subparts (g), (h), (i), and (j) seek
Confidential Information regarding the identity of computer systems and computer networks and
regarding the “Physical Location” and “Virtual Location” of digitized works, and the disclosure
of such Confidential Information would compromise the security of the HDL. Defendant also
objects to Interrogatory No. 3 on the grounds that subpart (k) is vague and ambiguous in that
“authorized,” “directed,” “supervised,” “facilitated” and “participated” are not defined and the
meaning of such terms is not clear in the context of the Interrogatory. Defendant further objects
to Interrogatory No. 3 on the grounds that subpart (l) seeks private and confidential information
protected from disclosure by agreements with other parties, and by federal statutes and
regulations.
Subject to the foregoing general and specific objections, and without waiving the same,
Defendant responds that no Master University Copy or Secondary University Copies exist of any
of the Works listed on Schedule A, and that Defendant has no knowledge or information
concerning the existence of any Third Party Digital Copies of any Work listed on Schedule A.
Defendant further responds that, upon information and belief, Google prepared a Master Digital
Copy of each Work listed on Schedule A based on Master Print Copies, but further information
concerning such Master Digital Copies lies with third parties and is not in Defendant’s

12

A-1090
Case 1:11-cv-06351-HB Document 114-73

Filed 06/29/12 Page 14 of 19

possession, custody, or control. Defendant further responds that, upon information and belief, a
HathiTrust Digital Copy exists for each Work listed on Schedule A, but any information
concerning such HathiTrust Digital Copies lies with third parties and is not in Defendant’s
possession, custody, or control.
Based, in part, on information provided to the Library by Google, Defendant provides the
following further response only as to the Master Digital Copy of each Work listed on Schedule
A, and disclaims any knowledge concerning any other digital copies of such Works:
(a)

the title and author of the Works are:

Good troupers all: the story of Joseph Jefferson, by Gladys Malvern (Macrae Smith
Company)
Talking with adventurers, by Christina M. Allen, Pat Cummings, and Linda C.
Cummings (National Geographic Society)
Dødsom over et folk? Imperialismen og Biafrakonflikten, by Helge Rønning (Pax)
Marguerite Duras a Montreal, André Roy (Editions Spirale)
Lilith, by J.R. Salamanca (Simon & Schuster)
Embarkation, by J.R. Salamanca (Knopf)
The lost country: a novel, by J. R. Salamanca (Simon & Schuster)
A sea change, by J.R. Salamanca (Knopf)
Southern light, by J.R. Salamanca (Knopf)
The hearts and lives of men, by Fay Weldon (Heinemann)
Big women, by Fay Weldon (Flamingo)
Life force, by Fay Weldon (Penguin Books)
Worst fears, by Fay Weldon (Flamingo)
(b)

upon information and belief, Master Digital Copies of each Work listed on

Schedule A were created on the following dates:
Good troupers all: the story of Joseph Jefferson – February 2, 2011
Talking with adventurers – November 24, 2009
Dødsom over et folk? Imperialismen og Biafrakonflikten – May 14, 2009
Marguerite Duras a Montreal – April 30, 2008
Lilith – November 17, 2008
Embarkation – June 18, 2008
The lost country: a novel – June 18, 2008
A sea change – June 18, 2008
Southern light – June 18, 2008
The hearts and lives of men – May 23, 2008
Big women – May 28, 2008
13

A-1091
Case 1:11-cv-06351-HB Document 114-73

Filed 06/29/12 Page 15 of 19

Life force – May 28, 2008
Worst fears – May 27, 2008.
(c)

Defendant reiterates his objection to this sub-part on the ground that “source” is

not defined and the meaning of such term is not clear in the context of the Interrogatory. Subject
to this objection, and without waiving the same, Defendant understands that the Master Digital
Copies of the Works on Schedule A were prepared by Google based on Master Print Copies.
(d)

This subpart calls for information in the possession, custody, or control of third

parties, including Google, and that is not known to Defendant, the University or the Library.
(e)

Defendant reiterates his objection to this subpart on the ground that “transferred

from its source” is not defined and the meaning of such phrase is not clear in the context of the
Interrogatory. Subject to this objection, and without waiving the same, Defendant responds that
this subpart calls for information in the possession, custody, or control of third parties, including
Google, and that is not known to Defendant, the University or the Library.
(f)

This subpart calls for information in the possession, custody, or control of third

parties, including Google, and that is not known to Defendant, the University or the Library.
(g)

Defendant reiterates his objection to this sub-part on the ground that it calls for

Confidential Information. Subject to this objection, and without waiving the same, Defendant
responds that this subpart calls for information in the possession, custody, or control of third
parties, including Google, and that is not known to Defendant, the University or the Library.
(h)

Defendant reiterates his objection to this subpart on the ground that it calls for

Confidential Information. Subject to this objection, and without waiving the same, Defendant
responds that this subpart calls for information in the possession, custody, or control of third
parties, including Google, and that is not known to Defendant, the University or the Library.

14

A-1092
Case 1:11-cv-06351-HB Document 114-73

(i)

Filed 06/29/12 Page 16 of 19

Defendant reiterates his objection to this subpart on the ground that it calls for

Confidential Information. Subject to this objection, and without waiving the same, Defendant
responds that this subpart calls for information in the possession, custody, or control of third
parties, including Google, and that is not known to Defendant, the University or the Library.
(j)

Defendant reiterates his objection to this sub-part on the ground that it calls for

Confidential Information. Subject to this objection, and without waiving the same, Defendant
responds that this subpart calls for information in the possession, custody, or control of third
parties, including Google, and that is not known to Defendant, the University or the Library.
(k)

For the identities of the individuals that selected, identified, collected and/or

transported to Google the Master Print Copies of each Work listed on Schedule A, see
Defendant’s response to Interrogatory 2(ii)(a) above. None of these individuals were directly
involved in the creation of the Master Digital Copy nor, upon information and belief, were Jodi
Healy-Pritchett, Library Partner Manager for Google; Todd Flynn, Library Partner Manager for
Google; Kurt Groetsch, Collections Specialist for Google; and Robert Nagle, Manager, Book
Search Operations for Google.
(l)

Defendant reiterates his objection to this subpart on the ground that it seeks

private and confidential information protected from disclosure by agreements with other parties,
and by federal statutes and regulations. Subject to this objection, and without waiving the same,
Defendant responds that neither Defendant, the University nor the Library have any knowledge
of the identities of any individuals with authorized access to the Physical and/or Virtual Location
of any digital copies made from the Master Print Copy.

4.
Identify the number of books the University contributed to HathiTrust and the
estimated number of those books the University believes are protected by copyright.
15

A-1093
Case 1:11-cv-06351-HB Document 114-73

Filed 06/29/12 Page 17 of 19

RESPONSE: Defendant objects to Interrogatory No. 4 on the ground that the phrase
“books the University contributed” is not defined and the meaning of such phrase is not clear in
the context of the Interrogatory. Subject to the foregoing general and specific objections, and
without waiving the same, Defendant responds that the University has contributed no “books” to
the HathiTrust. Defendant further responds that, as of December 9, 2011, the University had
provided Google with 3,105,945 volumes that, upon information and belief, were digitized and
are now in the HDL. Defendant does not have an estimate of the number of such works that are
protected by copyright under the United States Copyright Act.

5.
Describe in detail the process followed by the University between May 16, 2011
and September 16, 2011 in connection with the Orphan Works Project to determine whether a
work would be designated as an “orphan candidate.”
RESPONSE: Subject to the foregoing general objections, and without waiving the same,
Defendant responds that, aside from providing assistance in refining the process used by the
University of Michigan library to isolate prospective “orphan candidates” in its initiative to, inter
alia, identify “orphan works”—in-copyright works for which the copyright holder cannot be
found—and eventually to make lawful uses of these works, an initiative which the University of
Michigan library calls the “Orphan Works Project,” the University has not otherwise participated
in, nor taken any other actions whatsoever in connection with designating “orphan candidates”
for, the University of Michigan library’s “Orphan Works Project.” Defendant further responds
that the University was not substantively involved in the “Orphan Works Project” in any capacity
between May 16, 2011 and September 16, 2011.

6.
Identify the individual(s) who authorized, directed, supervised, facilitated and/or
participated in the Orphan Works Project between May 16, 2011 and September 16, 2011,
including each such individual’s name and current address, as well as his or her employer (at the
16

A-1094
Case 1:11-cv-06351-HB Document 114-73

Filed 06/29/12 Page 18 of 19

time the individual was involved with the Orphan Works Project), job title and role in the
Orphan Works Project.
RESPONSE: Defendant objects to Interrogatory No. 6 on the ground that the terms
“authorized,” “directed,” “supervised,” “facilitated” and “participated” are not defined and the
meaning of such terms is not clear in the context of the Interrogatory. Defendant further objects
to Interrogatory No. 6 to the extent it seeks the identity of individuals who were involved in
performing actions that were not instructed, overseen and/or performed by Defendant, the
University, or the Library. Subject to the foregoing general and specific objections, and without
waiving the same, Defendant responds that, aside from providing assistance in refining the
process used by the “Orphan Works Project” to isolate prospective “orphan candidates,” the
University has not otherwise participated in the “Orphan Works Project.” Defendant further
responds that the University was not substantively involved in the “Orphan Works Project” in
any capacity between May 16, 2011 and September 16, 2011.
DATED: February 8, 2012

Respectfully Submitted,

Joseph Petersen (JP 9071)
KILPATRICK TOWNSEND & STOCKTON LLP
31 West 52nd Street, 14th Floor
New York, NY 10019
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Joseph M. Beck (admitted pro hac vice)
W. Andrew Pequignot (admitted pro hac vice)
Allison Scott Roach (admitted pro hac vice)
KILPATRICK TOWNSEND & STOCKTON LLP
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants
17

I A-1095 I
Case 1:11-cv-06351-HB Document 114-73

Filed 06/29/12 Page 19 of 19

I, La ine Farley, ~uam 10 28 U.s.C. § 1746. dedm: as

roll(!"'~:

I WD Ex""~li,,, Di:'~IOI oftk Califorr.ia Digil4l Libr.vy, Dun.1 in the

I.

dcpann;:111 of ACII~~m;~ Pl3llni:l&, Prog,rur.s. and Coordir.rui<>ll"lh~ Uni ¥cnil)' of

Cal iforni a \Ih~
1.

-Un iv~S' Iy'').

All "fthe infmmalioD pr(l\ided in

Ib~

al10ched Responscs 10 Plaintiffs'

~ruployCC5 of the Ua;",rs:ly.

been employed In

proc~nn& l ~e

' nf""",,linn, /WId on thai basis I am Informed and 1>::llc\ e

Ihallhc ir.fOlmalion i5 true ~nd COI'l'tCl.

Excc:ncd Ihi,

L

clay of r~, 2012

Laine Farley

,............ ,

A-1096
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 1 of 52

EXHIBIT 75

A-1097
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 2 of 52

KILPATRICK TOWNSEND & STOCKTON LLP
Joseph Petersen (JP 9071)
31 West 52nd Street, 14th Floor
New York, New York 10019
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Joseph M. Beck (admitted pro hac vice)
W. Andrew Pequignot (admitted pro hac vice)
Allison Scott Roach (admitted pro hac vice)
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE AUTHORS GUILD, INC., ET AL.,
Case No. 11 Civ. 6351 (HB)
Plaintiffs,
v.
HATHITRUST, ET AL.,
Defendants.

RESPONSES TO PLAINTIFFS’
FIRST SET OF
INTERROGATORIES TO
DEFENDANT MARY SUE
COLEMAN

A-1098
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 3 of 52

Defendant Mary Sue Coleman (“Defendant”), in her official capacity as President of The
University of Michigan (the “University”) states the following objections and responses to
Plaintiffs’ First Set of Interrogatories to Defendant Mary Sue Coleman pursuant to Rules 26 and
33 of the Federal Rules of Civil Procedure (“FRCP”) and the Local Rules of the United States
District Courts for the Southern and Eastern Districts of New York (the “Local Rules”) and
based upon information provided to her by employees of the University with personal knowledge
of the relevant facts.
A.

GENERAL OBJECTIONS AND LIMITATIONS
1.

Defendant’s discovery and investigation of the facts of this proceeding are

continuing. These Interrogatory responses are based on information gathered as of the date of
these responses. Defendant reserves the right to amend or supplement her responses when and if
additional information is obtained, as required by the FRCP.
2.

Defendant objects to each of Plaintiffs’ definitions and instructions to the extent

they impose burdens and requirements on Defendant that are inconsistent with or beyond those
set forth in the FRCP or the Local Rules.
3.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent they impose burdens and requirements on Defendant that are inconsistent with or
beyond those set forth in the FRCP or the Local Rules.
4.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that the information sought is protected from disclosure by (a) agreements with
other parties, including, but not limited to, confidentiality agreements, (b) court order, or (c)
statute, regulation, administrative order or case law.
5.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

2

A-1099
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 4 of 52

to the extent that the information sought is commercially sensitive proprietary and/or confidential
information and trade secrets (“Confidential Information”). Defendant will provide nonprivileged, responsive Confidential Information only pursuant to the Protective Order in place in
this litigation.
6.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that the information sought was prepared in anticipation of litigation, constitutes
attorney work product, discloses mental impressions, conclusions, opinions, or legal theories of
Defendant’s attorneys, contains privileged attorney-client communications (including but not
limited to those subject to the common interest or joint defendant privilege) or is otherwise
protected from disclosure under applicable privileges, law, or rules, or because such information
is not properly discoverable under the FRCP or the Local Rules. Any disclosure of such
protected or privileged information in any response is inadvertent and shall not constitute a
waiver of such privilege, protection or immunity.
7.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that the information sought is (a) not in Defendant’s, the University’s, or the
Library’s possession, custody, or control, (b) in the possession, custody, or control of Plaintiffs,
(c) publicly available, or (d) as equally available and/or readily accessible to Plaintiffs as it is to
Defendant. These interrogatory responses are based on a reasonably diligent search for and
review of information in those areas within Defendant’s, the University’s, and the direct
knowledge, custody, or control where information of the type requested would be expected to be
found, and Defendant disclaims any obligation to solicit information from any other parties in
responding to the Interrogatories.

3

A-1100
Case 1:11-cv-06351-HB Document 114-75

8.

Filed 06/29/12 Page 5 of 52

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent they are vague, ambiguous, and/or contain terms that are undefined or otherwise
unclear.
9.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that the information sought is irrelevant to the subject matter of this action and to
the extent that the Interrogatories are not reasonably calculated to lead to the discovery of
admissible evidence.
10.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent that they prematurely call for the disclosure of information that Defendant may
obtain through discovery.
11.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

insofar as they assume disputed facts or legal conclusions. To the extent any interrogatory
assumes disputed facts or legal conclusions, Defendant denies such disputed facts or legal
conclusions. Any response or objection by Defendant with respect to any such Interrogatory is
without prejudice to this objection and Defendant’s right to dispute facts and legal conclusions
assumed by the Interrogatories.
12.

Defendant objects to the Interrogatories in their entirety and to each Interrogatory

to the extent they fail to contain defined time periods or limits, or seek information outside of the
relevant time period. In particular, Defendant objects to all demands in the Interrogatories that
require Defendant to search for, produce, disclose or identify information without any limitation
as to time. Unless otherwise indicated in a particular Interrogatory or the response thereto,
Defendant’s responses refer only to the time period between October 6, 2008 and October 6,
2011.

4

A-1101
Case 1:11-cv-06351-HB Document 114-75

13.

Filed 06/29/12 Page 6 of 52

No objection or limitation, or lack thereof, made in these responses and objections

shall be deemed an admission by Defendant as to the existence or nonexistence of information.
14.

Defendant’s responses to the Interrogatories are made without prejudice to the

assertion of additional objections and responses by her at a later date or to Defendant’s right to
supplement, modify, or amend her responses as appropriate, and to rely upon and produce
evidence during trial or at any other proceeding that may be held in this action.
15.

Defendant reserves the right to object on any ground at any time to a demand for

further response, and reserves the right to revise, supplement, correct, or add to these responses.
Defendant expressly reserves any and all rights and privileges under the FRCP, the Local Rules,
and any other law or rule, and the failure to assert such rights and privileges shall not constitute a
waiver thereof, either with respect to these responses or with respect to any future discovery
responses or objections.
16.

Defendant incorporates by reference these General Objections into each of the

Responses and Specific Objections set forth below, as if fully set forth in each of them.
B.

SPECIFIC OBJECTIONS AND LIMITATIONS
DEFINITIONS
1.

Defendant objects to Plaintiffs’ definition of “University” and to each

Interrogatory including that term as overly broad and unduly burdensome in that it includes
“each of its subsidiaries, divisions and affiliates, principals, officers, directors, members,
employees, agents and attorneys,” which refers to thousands of individuals, the vast majority of
which have no knowledge of and have had no involvement in the activities that are the subject of
Plaintiffs’ claims in this action.
2.

Defendant objects to Plaintiffs’ definition of “Library” on the ground that it is

5

A-1102
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 7 of 52

vague and ambiguous.
3.

Defendant objects to Plaintiffs’ definition of “Master Print Copy” and to each

Interrogatory including that term as vague and ambiguous in that Plaintiffs’ definition of “Master
Print Copy” refers to each “original print copy” without identifying the meaning of “original.”
As used in Plaintiffs’ Interrogatories and theses responses, Defendant understands “Master Print
Copy” to refer to a print copy of a Work purchased or otherwise acquired through lawful means
by the University.
4.

Defendant objects to Plaintiffs’ definition of “Master Digital Copy” and to each

Interrogatory including that term on the ground that they presume the existence of certain digital
copies that may not exist, or that may exist in the possession, custody, or control of third parties
and without Defendant’s, the University’s, or the Library’s knowledge. Defendant further
objects to Plaintiffs’ definition of “Master Digital Copy” and to each Interrogatory including that
term to the extent that they seek information in the possession, custody, or control of third parties
and not in the possession, custody, or control of Defendant, the University, or the Library.
Defendant states that upon information and belief Google prepared a “Master Digital Copy” of
each Work listed on Schedule A to Plaintiffs’ Set of Interrogatories to Defendant Mary Sue
Coleman (“Schedule A”) based on Master Print Copies, but further information concerning such
Master Digital Copies lies with third parties and is not in Defendant’s possession, custody, or
control.
5.

Defendant objects to Plaintiffs’ definitions of “Master University Copy,”

“Secondary University Copies,” and “HathiTrust Digital Copies” and to each Interrogatory
including those terms as vague and ambiguous and unnecessarily duplicative. Defendant states
that four “HathiTrust Digital Copies” are maintained to store and preserve the digitized works in

6

A-1103
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 8 of 52

the HathiTrust Digital Library (“HDL”), the shared repository of digital collections of
institutions participating in the HathiTrust Service: (1) the “Initial HathiTrust Digital Copy”
received from Google and incorporated into the HDL at the University, (2) the “Mirror Site
HathiTrust Digital Copy,” (3) the “First Backup Tape HathiTrust Digital Copy,” and (4) the
“Second Backup Tape HathiTrust Digital Copy.” The “Master University Copy,” as defined by
Plaintiffs, is the same as the “Initial HathiTrust Digital Copy” defined above and will be referred
to as such in Defendant’s responses. In addition, the only “Secondary University Copies” that
exist are also “HathiTrust Digital Copies,” namely, the “Mirror Site HathiTrust Digital Copy,”
the “First Backup Tape HathiTrust Digital Copy,” and the “Second Backup Tape HathiTrust
Digital Copy” defined above.
6.

Defendant objects to Plaintiffs’ definition of “Third Party Digital Copies” and to

each Interrogatory including that term on the ground that they presume the existence of certain
digital copies that may not exist, or that may exist in the possession, custody, or control of third
parties and without Defendant’s, the University’s, or the Library’s knowledge. Defendant further
objects to Plaintiff’s definition of “Third Party Digital Copies” and to each Interrogatory
including that term as overly broad to the extent Plaintiffs’ definition includes digital copies
created from the Master Digital Copy or digital copies thereof because, as described above, the
Master Digital Copy and information concerning the Master Digital Copy are with third parties
and are not in the possession, custody, or control of Defendant, the Library, or the University.
INSTRUCTIONS
7.

Defendant objects to Paragraph 1 of Plaintiffs’ “Instructions” to the extent that it

impermissibly seeks to impose burdens and requirements beyond those set forth in the FRCP 26
and 33 by requiring responses to the Interrogatories based upon the knowledge of, and

7

A-1104
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 9 of 52

information available to, parties other than the party upon which the Interrogatories are served,
and Defendant disclaims any obligation to solicit information from any other parties in
responding to the Interrogatories. Defendant further objects to this definition because it could
potentially refer to hundreds of individuals, the vast majority of which have no knowledge of and
have had no involvement in the activities that are the subject of Plaintiffs’ claims in this action,
and in this regard is overly broad, unduly burdensome, seeks irrelevant information and is not
reasonably calculated to lead to the discovery of admissible evidence.
RESPONSES TO INTERROGATORIES
1.
For each Work listed on Schedule A, separately identify the total number of
(i) print and (ii) digital copies the Library created of each Master Print Copy it owns.
RESPONSE: Defendant objects to Interrogatory No. 1 on the ground that it is vague and
ambiguous in that it requests information without specifying the time or time period for which
the information is sought. Subject to the foregoing general and specific objections, and without
waiving the same, Defendant responds that as of February 8, 2012, the Library has not created
any print or digital copies from a Master Print Copy of any Work listed on Schedule A.
Defendant further responds that the Library prepared for shipment to one of Google’s scanning
centers a Master Print Copy of each Work listed in Schedule A and, upon information and belief,
Google prepared one or more digital copies of each Work listed on Schedule A based on Master
Print Copies.

2.
For each Master Print Copy of a Work listed on Schedule A that the University
caused to be digitized, (i) describe the method by which the Library selected, identified,
collected and transported the Master Print Copy for digitization, and (ii) identify the individuals
(a) who directed or performed each of the foregoing actions, and (b) to whom the Master Print
Copy was delivered for digitization.

8

A-1105
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 10 of 52

RESPONSE: Defendant objects to Interrogatory No. 2 on the ground that it is vague and
ambiguous in that “caused to be digitized” is not defined and the meaning of this phrase is not
clear in the context of the Interrogatory. Defendant further objects to Interrogatory No. 2 to the
extent it seeks the identity of individuals who directed or performed actions that were not
directed or performed by Defendant, the University, or the Library. Subject to the foregoing
general and specific objections, and without waiving the same, Defendant responds as follows:
(i)

In certain instances, the Library collected works for digitization shelf by shelf,

selecting every work on each shelf, including the following Works listed on Schedule A:
Trond Andreassen, Bok-Norge: en litteratursosiologisk oversikt (Universitetsforlaget)
Pat Cummings, Talking With Artists: Volume 1 Bradbury Press)
Pat Cummings, Talking With Artists: Volume 2 (Simon & Schuster Books for
Young Readers)
Angelo Loukakis, Vernacular Dreams (University of Queensland Press)
Roxana Robinson, Summer light (Viking)
Roxana Robinson, Georgia O'Keeffe : a life (Harper & Row)
Roxana Robinson, A glimpse of scarlet and other stories (E. Burlingame Books)
Roxana Robinson, A glimpse of scarlet and other stories (HarperPerennial)
Roxana Robinson, Asking for love and other stories (Random House)
Roxana Robinson, Sweetwater : a novel (Random House)
Roxana Robinson, A perfect stranger: and other stories (Random House)
André Roy Marguerite, Duras à Montréal (Spirale)
J.R. Salamanca, Southern light : a novel (Knopf)
J.R. Salamanca, Embarkation (Knopf)
J.R. Salamanca, The lost country: a novel (Simon & Schuster)
J.R. Salamanca, A sea change (Knopf)
J.R. Salamanca, That summer's trance : a novel (Welcome Rain)
J.R. Salamanca, Lilith (Simon & Schuster)
James Shapiro, Oberammergau (Pantheon Books)
T.J. Stiles, Jesse James : last rebel of the Civil War (A.A. Knopf)
Fay Weldon, Watching me, watching you (Summit Books)
Fay Weldon, Praxis : a novel (Summit Books)
Fay Weldon, Puffball : a novel (Summit Books)
Fay Weldon, Remember me (Random House)
Fay Weldon, The heart of the country (Hutchinson)
Fay Weldon, The hearts and lives of men (Heinemann)
Fay Weldon, The rules of life (Hutchinson)
Fay Weldon, The Shrapnel Academy (Viking)
Fay Weldon, The heart of the country (Viking)
9

A-1106
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 11 of 52

Fay Weldon, Sacred cows (Chatto & Windus)
Fay Weldon, The fat woman's joke (Academy Chicago)
Fay Weldon, The cloning of Joanna May Collins
Fay Weldon, Little sisters (Chivers Press)
Fay Weldon, Darcy's utopia (Collins)
Fay Weldon, The cloning of Joanna May (Penguin Books)
Fay Weldon, Moon over Minneapolis/Why she couldn't stay (HarperCollins)
Fay Weldon, Life force (Viking)
Fay Weldon, Growing rich (HarperCollins)
Fay Weldon, Life force (HarperCollins)
Fay Weldon, Trouble (Penguin Books)
Fay Weldon, Affliction (HarperCollins)
Fay Weldon, Splitting (Flamingo)
Fay Weldon, Leader of the band (Penguin Books)
Fay Weldon, Growing rich (Flamingo)
Fay Weldon, The hearts and lives of men (Flamingo)
Fay Weldon, A hard time to be a father: a collection of short
Stories (Flamingo)
Fay Weldon, Life force (HarperCollins)
Fay Weldon, Nothing to wear and nowhere to hide: stories (Flamingo)
Fay Weldon, Big women (Flamingo)
Fay Weldon, Godless in Eden : a book of essays (Flamingo)
Fay Weldon, Rhode Island blues (Flamingo)
Fay Weldon, The Bulgari connection (Flamingo)
Fay Weldon, Auto da fay (Flamingo)
Fay Weldon, Flood warning : a play (Samuel French)
Fay Weldon, Wicked women : stories (The Atlantic Monthly Press)
Fay Weldon, Mantrapped (Fourth Estate)
Fay Weldon, She may not leave (Fourth Estate)
Fay Weldon, The spa decameron (Quercus)
In other instances, Google Inc. (“Google”) provided the Library with a list of candidate
works for digitization, which included the following Works listed on Schedule A:
Pat Cummings, C.L.O.U.D.S. (Lothrop, Lee & Shepard Books)
Pat Cummings, Clean Your Room, Harvey Moon! (Bradbury Press)
Pat Cummings, Jimmy Lee Did It (Lothrop, Lee & Shepard Books)
Fay Weldon, Wicked women : stories (The Atlantic Monthly Press)
The Library’s staff retrieved the Master Print Copy of each Work listed in Schedule A and
prepared them for shipment to one of Google’s scanning centers. Google arranged for
transportation of the Master Print Copies from, and back to, the Library.

10

A-1107
Case 1:11-cv-06351-HB Document 114-75

(ii)

(a)

Filed 06/29/12 Page 12 of 52

For each of the foregoing actions that was directed or performed by the

Library, the individuals who were primarily responsible for such actions are Susan Wooding,
Operations Manager/Hatcher-Shapiro Access Unit; Geoffrey Stoll, Information Resources
Intermediate Supervisor; Anne Karle-Zenith and Julia Lovett, Special Project Librarians; and
Library stacks employees Maureen Hoyi, Alan Steele, and Adam McDermott. For each of the
foregoing actions that was directed or performed by Google, the individual who was primarily
responsible for such actions is, upon information and belief, Ben Bunnell, Google Project
Manager.
(b)

A Master Print Copy of each Work on Schedule A was delivered to

Google for digitization.

3.
For each Work listed on Schedule A, provide the following information with
regard to the Master Digital Copy, Master University Copy and all Secondary University Copies,
HathiTrust Digital Copies and Third Party Digital Copies of the Work:
(a)

the title and author of the Work;

(b)

the date the digital copy was created;

(c)

the identity of the source of the digital copy;

(d)

a description of the equipment and method used to create the digital copy;

(e)

a description of the means by which the digital copy was transferred from
its source;

(f)

the type of media (e.g., DVD, flash drive, internal/external hard drive, tape
backup, etc.) on which the digital copy is stored;

(g)

the identity of any computer system connected to media on which the
digital copy is stored;

(h)

the identity of any computer network to which a device storing the digital
copy is connected;

(i)

the Physical Location of the digital copy;
11

A-1108
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 13 of 52

(j)

the Virtual Location of the digital copy;

(k)

the identities of the individual(s) who authorized, directed, supervised,
facilitated and/or participated in the creation of the digital copy, including
each such individual’s name and current address, as well as his or her
employer (at the time of the digitization), job title and role in the creation
of the digital copy;

(l)

the identities of the individual(s) who currently have authorized access to
the Physical Location and/or Virtual Location of the digital copy,
including each such individual’s name and current address, as well as his
or her current employer, title and job description.

RESPONSE: Defendant objects to Interrogatory No. 3 on the ground that it presumes the
existence of certain digital copies that may not exist, or that may exist in the possession, custody,
or control of third parties and without Defendant’s, the University’s, or the Library’s knowledge.
Defendant further objects to Interrogatory No. 3 to the extent that it seeks information in the
possession, custody, or control of third parties and not in the possession, custody, or control of
Defendant, the University, or the Library. Defendant further objects to Interrogatory No. 3 on
the ground that subparts (c) and (e) are vague and ambiguous in that “source” and “transferred
from its source” are not defined and the meaning of such terms is not clear in the context of the
Interrogatory. Defendant also objects to Interrogatory No. 3 on the ground that subparts (g), (h),
(i), and (j) seek Confidential Information regarding the identity of computer systems and
computer networks and regarding the “Physical Location” and “Virtual Location” of digitized
works, and the disclosure of such Confidential Information would compromise the security of the
HDL. Defendant further objects to Interrogatory No. 3 on the ground that subpart (k) is vague
and ambiguous in that “authorized,” “directed,” “supervised,” “facilitated” and “participated” are
not defined and the meaning of such terms is not clear in the context of the Interrogatory.
Defendant also objects to Interrogatory No. 3 as overly broad and unduly burdensome to the
extent that subpart (k) seeks the current address of individuals who were employed by the

12

A-1109
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 14 of 52

University at the time of the digitization but who are no longer employed by the University or
involved in the HathiTrust service. Defendant further objects to Interrogatory No. 3 on the
ground that subpart (l) seeks private and confidential information protected from disclosure by
agreements with other parties, and by federal statutes and regulations.
Subject to the foregoing general and specific objections, and without waiving the same,
Defendant responds that, upon information and belief, Google prepared a Master Digital Copy of
each Work listed on Schedule A based on Master Print Copies, but further information
concerning such Master Digital Copies lies with third parties and is not in Defendant’s
possession, custody, or control. Defendant further responds that no Third Party Digital Copies
have been created from the HathiTrust Digital Copies of any Work listed on Schedule A, and
that four HathiTrust Digital Copies are maintained to store and preserve the digitized works in
the HDL: (1) the “Initial HathiTrust Digital Copy” received from Google and incorporated into
the HDL at the University, (2) the “Mirror Site HathiTrust Digital Copy,” (3) the “First Backup
Tape HathiTrust Digital Copy,” and (4) the “Second Backup Tape HathiTrust Digital Copy.” In
addition, the “Master University Copy,” as defined by Plaintiffs, is the same as the Initial
HathiTrust Digital Copy defined above and will be referred to as such in Defendant’s responses.
Moreover, the only “Secondary University Copies” that exist are HathiTrust Digital Copies,
namely, the Mirror Site HathiTrust Digital Copy, the First Backup Tape HathiTrust Digital
Copy, and the Second Backup Tape HathiTrust Digital Copy defined above.
With respect to the Master Digital Copy and the HathiTrust Digital Copies, Defendant
provides responses to subparts (a), (b), and (j) in the attached Exhibit A. Because Defendant’s
responses to subparts (c)-(i), (k), and (l) are the same for each Work listed in Schedule A and for
Plaintiffs’ convenience, Defendant provides responses to these subparts below.

13

A-1110
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 15 of 52

In response to subparts (c)-(i), Defendant provides the information in the chart below,
which applies to the Master Digital Copy and the HathiTrust Digital Copies for each of the
Works listed on Schedule A.

Master Digital Copy

Initial
HathiTrust
Digital Copy

Mirror Site
HathiTrust
Digital Copy

First Backup
Tape
HathiTrust
Digital Copy
The Initial
HathiTrust
Digital Copy

Second
Backup Tape
HathiTrust
Digital Copy
The First
Backup Tape
HathiTrust
Digital Copy

(c) the identity
of the source of
the digital copy;

On information and
belief, the Master Print
Copies

Google Return
Interface

The Initial
HathiTrust
Digital Copy

(d) a description
of the equipment
and method
used to create
the digital copy;
(e) a description
of the means by
which the digital
copy was
transferred
from its source;
(f) the type of
media (e.g.,
DVD, flash
drive,
internal/external
hard drive, tape
backup, etc.) on
which the digital
copy is stored;
(g) the identity
of any computer
system
connected to
media on which
the digital copy
is stored;

Such information is not
in Defendant’s, the
University’s, or the
Library’s possession,
custody, or control.
Such information is not
in Defendant’s, the
University’s, or the
Library’s possession,
custody, or control.

Google Return
Interface.

Isilon SyncIQ

Tivoli Storage
Manager
backup

Internal Tivoli
Storage
Manager
replication

Google Return
Interface.

Isilon SyncIQ

Tivoli Storage
Manager
backup
protocol

Tivoli Storage
Manager
backup
protocol

Such information is not
in Defendant’s, the
University’s, or the
Library’s possession,
custody, or control.

Isilon Network
Attached
Storage

Isilon Network
Attached
Storage

Encrypted tape

Encrypted tape

Such information is not
in Defendant’s, the
University’s, or the
Library’s possession,
custody, or control.

Two
HathiTrust
production
web servers,
four
HathiTrust
ingest servers,
and four
HathiTrust
development
web servers

Two
HathiTrust
production
web servers
and two
HathiTrust
data set prep /
repository
validation
servers

Four
University of
Michigan
Information
Technology
Services Tivoli
Storage
Manager
servers located
at the Arbor
Lakes Data
Facility

(h) the identity
of any computer

Such information is not
in Defendant’s, the

The HathiTrust
private

The HathiTrust
private

Four
University of
Michigan
Information
Technology
Services Tivoli
Storage
Manager
servers located
at the
Michigan
Academic
Computing
Center
The University
of Michigan

14

The University
of Michigan

A-1111
Case 1:11-cv-06351-HB Document 114-75

network to
which a device
storing the
digital copy is
connected;

University’s, or the
Library’s possession,
custody, or control.

computer
network and
the University
of Michigan
campus
computer
network

(i) the Physical
Location of the
digital copy;

Such information is not
in Defendant’s, the
University’s, or the
Library’s possession,
custody, or control.

Michigan
Academic
Computing
Center, Room
100, 1000
Oakbrook
Drive, Ann
Arbor,
Michigan

Filed 06/29/12 Page 16 of 52

computer
network and
the Indiana
University –
Purdue
University
Indianapolis
campus
computer
network
Informatics &
Communicatio
ns Technology
Complex,
Room IT 024,
535 West
Michigan
Street,
Indianapolis,
Indiana

campus
computer
network

campus
computer
network

Michigan
Academic
Computing
Center, Room
100, 1000
Oakbrook
Drive, Ann
Arbor,
Michigan

Arbor Lakes
Data Facility,
Room 9100,
Arbor Lakes
Building 1,
4251 Plymouth
Rd., Ann
Arbor,
Michigan

In response to subpart (k), Defendant provides the information in the chart below, which
applies to the Master Digital Copy and the HathiTrust Digital Copies for each of the Works listed
on Schedule A. All individuals identified as employees of the University may be contacted
through Defendants’ counsel.
Master Digital Copy

Initial HathiTrust
Digital Copy

Mirror Site
HathiTrust Digital
Copy

First Backup Tape
HathiTrust Digital
Copy

Second Backup
Tape HathiTrust
Digital Copy

Upon information and
belief, Google
prepared a Master
Digital Copy of each
Work listed on
Schedule A based on
Master Print Copies,
but further
information
concerning such
Master Digital
Copies, including the
identities of the
individual(s) at
Google who
authorized, directed,
supervised,
facilitated, and/or
participated in the

By entering the
December 14, 2004
Cooperative
Agreement with
Google, the Regents
of the University of
Michigan/University
Library, Ann Arbor
Campus authorized
the creation of the
Initial HathiTrust
Digital Copy. Per the
terms of the
Cooperative
Agreement, Google
provided the Library
with the ability to
obtain the Initial
HathiTrust Digital

The University of
Michigan Library IT
Core Services staff,
namely, Ezra
Brooks, Aaron
Elkiss, Sebastien
Korner, Thomas
Mooney, Ryan
Rotter, and Cory
Snavely, all of
whom are employed
by the University, as
well as Jessica
Feeman, who was
employed as a
University of
Michigan Library IT
Core Services staff
member at the time,

The University of
Michigan Library IT
Core Services staff,
namely, Ezra
Brooks, Aaron
Elkiss, Sebastien
Korner, Thomas
Mooney, Ryan
Rotter, and Cory
Snavely, all of
whom are employed
by the University, as
well as Jessica
Feeman, who was
employed as a
University of
Michigan Library IT
Core Services staff
member at the time,

The University of
Michigan Library IT
Core Services staff,
namely, Ezra
Brooks, Aaron
Elkiss, Sebastien
Korner, Thomas
Mooney, Ryan
Rotter, and Cory
Snavely, all of
whom are employed
by the University, as
well as Jessica
Feeman, who was
employed as a
University of
Michigan Library IT
Core Services staff
member at the time,

15

A-1112
Case 1:11-cv-06351-HB Document 114-75

creation of the Master
Digital Copies, is not
in Defendant’s, the
University’s, or the
Library’s possession,
custody, or control.
By entering the
December 14, 2004
Cooperative
Agreement with
Google, the Regents
of the University of
Michigan/University
Library, Ann Arbor
Campus authorized
the creation of the
Master Digital Copy.

Copy.
The University of
Michigan Library IT
Core Services staff,
namely, Ezra Brooks,
Aaron Elkiss,
Sebastien Korner,
Thomas Mooney,
Ryan Rotter, and
Cory Snavely, all of
whom are employed
by the University, as
well as Jessica
Feeman, who was
employed as a
University of
Michigan Library IT
Core Services staff
member at the time,
were primarily
responsible for
obtaining the Initial
HathiTrust Digital
Copy from Google
Return Interface.

were primarily
responsible for the
creation of the
Mirror Site
HathiTrust Digital
Copy using Isilon
SyncIQ.

Filed 06/29/12 Page 17 of 52

were primarily
responsible for the
creation of the First
Backup Tape
HathiTrust Digital
Copy using Tivoli
Storage Backup
manager.

were primarily
responsible for the
creation of the
Second Backup
Tape HathiTrust
Digital Copy using
Tivoli Storage
Manager
replication.

In response to subpart (l), Defendant provides the information in the chart below, which
applies to the Master Digital Copy and the HathiTrust Digital Copies for each of the Works listed
on Schedule A as of February 1, 2012. All individuals identified as employees of the University,
the University of Wisconsin, or Indiana University may be contacted through Defendants’
counsel.

Master
Digital Copy

Initial HathiTrust Digital
Copy

Mirror Site HathiTrust Digital
Copy

First
Backup
Tape
HathiTrust
Digital Copy

Upon
information
and belief,
Google
prepared a
Master
Digital Copy
of each Work

Ezra Brooks, Aaron Elkiss,
Sebastien Korner, Thomas
Mooney, Ryan Rotter, and Cory
Snavely, who are System
Administrators and
Programmers, University of
Michigan Library, are
authorized for certain access to

Hafid Adnane, Chad Harris, and
Andrew Poland, System
Administrators, Indiana
University, and Ezra Brooks,
Aaron Elkiss, Sebastien Korner,
Thomas Mooney, Ryan Rotter,
and Cory Snavely, who are
System Administrators and

Mike
Garrison,
Cameron
Hanover,
Phil Jessel,
David
Nowell, and
Steve

16

Second
Backup
Tape
HathiTrust
Digital Copy
Mike
Garrison,
Cameron
Hanover,
Phil Jessel,
David
Nowell, and
Steve

A-1113
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 18 of 52

listed on
Schedule A
based on
Master Print
Copies, but
further
information
concerning
such Master
Digital
Copies,
including the
identities of
the
individual(s)
who have
authorized
access to the
Physical
Location of
the Master
Digital
Copies, is not
in
Defendant’s,
the
University’s,
or the
Library’s
possession,
custody, or
control.

the Physical Location of the
Initial HathiTrust Digital Copy.

Programmers, University of
Michigan Library, are authorized
for certain access to the Physical
Location of the Mirror Site
HathiTrust Digital Copy.

Simmons,
who are
Tivoli
Storage
Manager
Administrato
rs, University
of Michigan
Information
Technology
Services, are
authorized
for certain
access to the
Physical
Location of
the First
Backup Tape
HathiTrust
Digital Copy.

Simmons,
who are
Tivoli
Storage
Manager
Administrato
rs, University
of Michigan
Information
Technology
Services, are
authorized
for certain
access to the
Physical
Location of
the Second
Backup Tape
HathiTrust
Digital Copy.

Upon
information
and belief,
Google
prepared a
Master
Digital Copy
of each Work
listed on
Schedule A
based on
Master Print
Copies, but
further
information
concerning
such Master
Digital
Copies,
including the

John Wilkin, Associate
University Librarian, University
of Michigan Library; Zack
Lane, Copyright Researcher,
Columbia University, 535 West
114th Street, New York, New
York 10027; Janet Black, Kathy
Marlett, Jo McClamroch, and
Sherri Michaels, Copyright
Researchers, Indiana
University; Judith Ahronheim,
David Fulmer, Dennis
McWhinnie, Gregory Nichols,
and Christine Wilcox,
Copyright Researchers,
University of Michigan; Carla
Dewey Urban, Copyright
Researcher, University of
Minnesota, 3675 Arboretum
Drive, Chaska, Minnesota,

John Wilkin, Associate
University Librarian, University
of Michigan Library; Zack Lane,
Copyright Researcher, Columbia
University, 535 West 114th
Street, New York, New York
10027; Janet Black, Kathy
Marlett, Jo McClamroch, and
Sherri Michaels, Copyright
Researchers, Indiana University;
Judith Ahronheim, David
Fulmer, Dennis McWhinnie,
Gregory Nichols, and Christine
Wilcox, Copyright Researchers,
University of Michigan; Carla
Dewey Urban, Copyright
Researcher, University of
Minnesota, 3675 Arboretum
Drive, Chaska, Minnesota,
55318; Sue Zuriff, Copyright

Ezra Brooks,
Aaron Elkiss,
Sebastien
Korner,
Thomas
Mooney,
Ryan Rotter,
and Cory
Snavely, who
are System
Administrato
rs and
Programmers
, University
of Michigan
Library, are
authorized
for certain
access to the
Virtual

Ezra Brooks,
Aaron Elkiss,
Sebastien
Korner,
Thomas
Mooney,
Ryan Rotter,
and Cory
Snavely, who
are System
Administrato
rs and
Programmers
, University
of Michigan
Library, are
authorized
for certain
access to the
Virtual

17

A-1114
Case 1:11-cv-06351-HB Document 114-75

identities of
the
individual(s)
who have
authorized
access to the
Virtual
Location of
the Master
Digital
Copies, is not
in
Defendant’s,
the
University’s,
or the
Library’s
possession,
custody, or
control.

55318; Sue Zuriff, Copyright
Researchers, University of
Minnesota, 309 19th Avenue
South, Minneapolis, Minnesota
55455; Lisa Nachreiner, Karen
Rattunde, Rita Roemer, and Al
Seeger, Copyright Researchers,
University of Wisconsin; Bobby
Glushko Copyright Specialist,
University of Michigan Library;
Melissa Levine, Lead Copyright
Officer, University of Michigan
Library; Benjamin Tobey, Lisa
Jackson Hardman, Melvin
Whitehead, Neena Adams,
Bryan Birchmeier, Katie Kujala,
and Monica Tsuneishi, Orphan
Works Investigators, University
of Michigan Library; Martin
Brennan, Sharon Farb, Diane
Gurman, Leslie McMichael, and
Angela Riggio, Orphan Works
Investigators, University of
California Los Angeles, Charles
E. Young Research Library
Building, Los Angeles,
California 90095-1575; Lara
Unger and Lawrence Wentzel,
Digitization Specialists,
University of Michigan Library;
Jackie Bronicki, Image Quality
Researcher, University of
Michigan Library; Emily
Campbell, Martin Knott, Connie
McGuire, Liz Mustard, Chris
Powell, and Ellen Wilson,
Librarians, University of
Michigan Library; Shane Beers,
Digital Preservation Specialist,
University of Michigan Library;
Tom West-Burton, Roger
Espinosa, Phillip Farber, Nasir
Grewal, Brian Hall, Tim
Prettyman, Pranay Sethi, Peter
Ulintz, and John Weise,
Programmers, University of
Michigan Library; Kat
Hagedorn, Project Manager,
University of Michigan Library;
Julia Lovett and Jeremy York,
Special Projects Librarians,
University of Michigan Library;
Angelina Zaytsev, Project

Filed 06/29/12 Page 19 of 52

Researchers, University of
Minnesota, 309 19th Avenue
South, Minneapolis, Minnesota
55455; Lisa Nachreiner, Karen
Rattunde, Rita Roemer, and Al
Seeger, Copyright Researchers,
University of Wisconsin; Bobby
Glushko, Copyright Specialist,
University of Michigan Library;
Melissa Levine, Lead Copyright
Officer, University of Michigan
Library; Benjamin Tobey, Lisa
Jackson Hardman, Melvin
Whitehead, Neena Adams,
Bryan Birchmeier, Katie Kujala,
and Monica Tsuneishi, Orphan
Works Investigators, University
of Michigan Library; Martin
Brennan, Sharon Farb, Diane
Gurman, Leslie McMichael, and
Angela Riggio, Orphan Works
Investigators, University of
California Los Angeles, Charles
E. Young Research Library
Building, Los Angeles,
California 90095-1575; Lara
Unger and Lawrence Wentzel,
Digitization Specialists,
University of Michigan Library;
Jackie Bronicki, Image Quality
Researcher, University of
Michigan Library; Emily
Campbell, Martin Knott, Connie
McGuire, Liz Mustard, Chris
Powell, and Ellen Wilson,
Librarians, University of
Michigan Library; Shane Beers,
Digital Preservation Specialist,
University of Michigan Library;
Tom West-Burton, Roger
Espinosa, Phillip Farber, Nasir
Grewal, Brian Hall, Tim
Prettyman, Pranay Sethi, Peter
Ulintz, and John Weise,
Programmers, University of
Michigan Library; Kat
Hagedorn, Project Manager,
University of Michigan Library;
Julia Lovett and Jeremy York,
Special Projects Librarians,
University of Michigan Library;
Angelina Zaytsev, Project
Assistant, University of

18

Location of
the First
Backup Tape
HathiTrust
Digital Copy.

Location of
the Second
Backup Tape
HathiTrust
Digital Copy.

A-1115
Case 1:11-cv-06351-HB Document 114-75

Assistant, University of
Michigan Library; Ezra Brooks,
Aaron Elkiss, Sebastien Korner,
Thomas Mooney, Ryan Rotter,
and Cory Snavely, System
Administrators and
Programmers, University of
Michigan Library; Suzanne
Chapman, User Interface
Specialist, University of
Michigan Library; and 32
University of Michigan students
and/or employees who receive
authorization through the
University of Michigan’s Office
of Services for Students with
Disabilities as part of the
reasonable accommodations
provided to them under federal
law are authorized for certain
access to the Virtual Location of
the Initial HathiTrust Digital
Copy.

Filed 06/29/12 Page 20 of 52

Michigan Library; Ezra Brooks,
Aaron Elkiss, Sebastien Korner,
Thomas Mooney, Ryan Rotter,
and Cory Snavely, System
Administrators and
Programmers, University of
Michigan Library; Suzanne
Chapman, User Interface
Specialist, University of
Michigan Library, and 32
University of Michigan students
and/or employees who receive
authorization through the
University of Michigan’s Office
of Services for Students with
Disabilities as part of the
reasonable accommodations
provided to them under federal
law are authorized for certain
access to the Virtual Location of
the Second HathiTrust Digital
Copy.

4.
Identify the number of books the University contributed to HathiTrust and the
estimated number of those books the University believes are protected by copyright.
RESPONSE: Defendant objects to Interrogatory No. 4 on the ground that the phrase
“books the University contributed” is not defined and the meaning of such phrase is not clear in
the context of the Interrogatory. Subject to the foregoing general and specific objections, and
without waiving the same, Defendant responds that the University has contributed no “books” to
HathiTrust. Defendant further responds that, as of December 20, 2011, the University, through
its Library, had incorporated into the HathiTrust Digital Library 4,490,155 digitized volumes; the
Library does not currently have an estimate of the number of such works that are protected by
copyright under the United States Copyright Act, as the Library’s efforts to determine the
copyright status of works in the HathiTrust Digital Library are ongoing.

19

A-1116
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 21 of 52

5.
Describe in detail the process followed by the University between May 16, 2011
and September 16, 2011 in connection with the Orphan Works Project to determine whether a
work would be designated as an “orphan candidate.”
RESPONSE: Subject to the foregoing general objections and without waiving the same,
Defendant responds that the process followed by the University and the Library between May
16, 2011 and September 16, 2011 in connection with the “Orphan Works Project” (an initiative
to, inter alia, identify “orphan works,” in-copyright works for which the copyright holder cannot
be found (“OWP”)) to determine whether a work would be designated as an “orphan works
candidate” (which, after further investigation, the Library may have decided to make available to
certain users of the HathiTrust Service on a limited basis) included the steps described below
(the “Initial OWP Process”). During the period from May 16, 2011 to September 16, 2011, the
Initial OWP Process was continually being evaluated and adjusted based on information acquired
and analyzed through the Initial OWP Process.
(1) The Library began its review of works under the Initial OWP Process on or about
May 16, 2011. The works reviewed in the Initial OWP Process were works that were determined
to be in-copyright by the University and the Library’s Copyright Review Management System.
Works reviewed in the Initial OWP Process were reviewed by Orphan Works Investigators
(“OWIs”) who were hired and trained specifically to conduct the OWP research.
(2) To begin their review of each work, OWIs were provided with information
concerning the work including but not limited to bibliographic data.
(3) After verifying the bibliographic data, the OWI conducted searches for the work on
Amazon.com and, in certain circumstances, Bookfinder.com to determine whether the work was
available in print and unused. If, through these searches, the OWI identified the work available
in print, he or she stopped review of the work; if the OWI identified the work as not available in
print, he or she continued to the next step of the review.
20

A-1117
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 22 of 52

(4) The purpose of the next step in the OWI’s review was to determine whether a rights
holder for the work could be located, beginning with research regarding the work’s publisher. If,
through his or her research, the OWI identified contact information for the publisher, he or she
noted the contact information in the shared spreadsheets and stopped review of the work; if the
OWI could not identify contact information for the publisher, the OWI noted this fact on the
shared spreadsheets and continued to the next step of the review process.
(5) If no contact information could be identified for the work’s publisher, the OWI began
to research authors, copyright renewers, and other potential rights holders for the work, such as
copyright holders listed on the title page verso and other leads identified during research. If the
OWI was able to identify email or telephone contact information for a potential rights holder, the
OWI would record the contact information, and stop his or her review of the work. If the OWI
was unable to identify email or telephone contact information for a potential rights holder, the
OWI coded the work as a potential orphan works candidate.
(6) Once the primary review was completed for a particular work, a secondary, blind
review was undertaken by a different OWI. If the final codes entered for the primary and
secondary review matched, then the work either became an orphan works candidate or did not as
indicated by the coding. If the final codes of the primary and secondary review did not match, a
conflict, or third, review was conducted.
(7) The bibliographic information for works identified as orphan works candidates were
posted on the HathiTrust service website (and also could be viewed on the Library website). The
first list of bibliographic information for orphan work candidates was posted on the HathiTrust
service website on or about July 15, 2011. The bibliographic information for these candidates,
and others subsequently added, were intended to be publicly posted for ninety days as a further

21

A-1118
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 23 of 52

effort to identify the rights holders of the works. If the rights holder for one of the orphan work
candidates identified him/herself, or even if a third party brought forward information leading to
a link between a work and a rights holder, the work was removed from the list of candidates and
from the OWP. (Indeed, if a copyright holder were identified at any time—even after the
expiration of the planned ninety-day period—the copyright holder’s work would have been
removed from the OWP, consistent with the OWP’s purpose to identify and provide certain
access only to genuine orphan works.)
(8) On September 16, 2011, before the expiration of the ninety-day online posting period
of the bibliographic information for the first set of orphan works candidates, and before any
works were made available through the OWP, the Library withdrew from the “HathiTrust Digital
Library – Orphan works candidates” webpage the bibliographic information for the initial list of
orphan works candidates and issued a statement that it had “begun an examination of [its]
procedures” to “create a more robust, transparent, and fully documented process.”

6.
Identify the individual(s) who authorized, directed, supervised, facilitated and/or
participated in the Orphan Works Project between May 16, 2011 and September 16, 2011,
including each such individual’s name and current address, as well as his or her employer (at the
time the individual was involved with the Orphan Works Project), job title and role in the
Orphan Works Project.
RESPONSE: Defendant objects to Interrogatory No. 6 on the ground that the terms
“authorized,” “directed,” “supervised,” “facilitated” and “participated” are not defined and the
meaning of such terms is not clear in the context of the Interrogatory. Defendant also objects to
Interrogatory No. 6 as overly broad and unduly burdensome to the extent it seeks the current
address of individuals who were employed by the UM at the time the individual was involved
with the Initial OWP Process but who are no longer employed by UM or involved with the OWP
Project. Subject to the foregoing general and specific objections and without waiving the same,
22