Authors Guild, Inc. v. Hathitrust

Filing 224

DEFERRED APPENDIX, volume 5 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.[978669] [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 5 of 5 (Pages A-1119 to A-1367)
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-1119
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 24 of 52

Defendant responds that the following individuals were primarily responsible for the direction,
supervision, and facilitation of the Initial OWP Process between May 16, 2011 and September
16, 2011. All of the individuals who are currently employed by UM may be contacted through
Defendants’ counsel.
John Wilkin, Associate University Librarian
and Executive Director of the HathiTrust,
University of Michigan

Authorized and supervised the Initial OWP
Process.

Melissa Levine, Lead Copyright Officer,
University of Michigan

Supervised and participated in the design of the
Initial OWP Process as the head of the
Library’s Copyright Office.
Greg Grossmeier, Copyright Specialist,
Supervised and participated in the design of the
University of Michigan
Initial OWP Process and project tools as the
OWP Project Administrator until August 2011.
Julia Lovett, Special Projects Librarian,
Supervised and participated in the design and
University of Michigan
implementation of the Initial OWP Process and
project tools as the OWP Project Administrator
beginning in late August 2011
Benjamin Tobey, Senior Orphan Works
Conducted copyright research as an OWI under
Investigator, University of Michigan
the Initial OWP Process and served in a
technical role in organizing research results.
Lisa Hardman, Orphan Works Investigator,
Conducted copyright research as an OWI under
University of Michigan
the Initial OWP Process.
Melvin Whitehead, Orphan Works
Conducted copyright research as an OWI under
Investigator, University of Michigan
the Initial OWP Process.
Bobby Glushko, Copyright Specialist, University Periodic assistance with OWP project
of Michigan
management from August 10, 2011 to early
September 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]

23

A-1120
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 25 of 52

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

24

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
litteratursosiologisk
oversikt by Trond
Andreassen

Filed 06/29/12 Page 26 of 52

(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;

October 10, 2009

1

January 6, 2011

January 6, 2011

January 7, 2011

January 7, 2011

/sdr18/obj/mdp/pairtr
ee_root/39/01/50/14/2
8/03/85/39015014280
385/39015014280385
.zip
/sdr18/obj/mdp/pairtr
ee_root/39/01/50/14/2
8/03/85/39015014280
385/39015014280385
.zip

/sdr18/obj/mdp/pairtr
ee_root/39/01/50/14/2
8/03/85/39015014280
385/39015014280385
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, December 15,
2010

/sdr18/obj/mdp/pairtr
ee_root/39/01/50/14/2
8/03/85/39015014280
385/39015014280385
.zip

October 10, 2009

October 9, 2009

October 9, 2009

/sdr6/obj/mdp/pairtree
_root/39/01/50/50/52/
28/49/390150505228
49/39015050522849.z
ip

/sdr6/obj/mdp/pairtree
_root/39/01/50/50/52/
28/49/390150505228
49/39015050522849.
zip

/sdr6/obj/mdp/pairtree
_root/39/01/50/50/52/
28/49/390150505228
49/39015050522849.
zip

/sdr6/obj/mdp/pairtree
_root/39/01/50/50/52/
28/49/390150505228
49/39015050522849.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, August 28,
2009

November 13, 2008

Second Backup
Tape HathiTrust
Digital Copy

November 13, 2008

First Backup Tape
HathiTrust Digital
Copy

December 1, 2008

Mirror Site
HathiTrust Digital
Copy

October 25, 2007

Initial HathiTrust
Digital Copy

On information and
belief, August 10,
2007

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1121

Jimmy Lee Did It by
Pat Cummings

Clean Your Room,
Harvey Moon! by
Pat Cummings

(a) the title and
author of the
Work;

Filed 06/29/12 Page 27 of 52

(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;

January 6, 2011

Second Backup
Tape HathiTrust
Digital Copy
/sdr7/obj/mdp/pairtree
_root/49/01/50/00/89/
65/98/490150008965
98/49015000896598.z
ip

January 20, 2011

/sdr7/obj/mdp/pairtree
_root/49/01/50/01/47/
12/50/490150014712
50/49015001471250.
zip
/sdr7/obj/mdp/pairtree
_root/49/01/50/01/47/
12/50/490150014712
50/49015001471250.
zip

/sdr7/obj/mdp/pairtree
_root/49/01/50/01/47/
12/50/490150014712
50/49015001471250.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

2

/sdr7/obj/mdp/pairtree
_root/49/01/50/01/47/
12/50/490150014712
50/49015001471250.z
ip

January 20, 2011

January 19, 2011

January 19, 2011

/sdr7/obj/mdp/pairtree
_root/49/01/50/01/47/
07/32/490150014707
32/49015001470732.
zip

/sdr7/obj/mdp/pairtree
_root/49/01/50/01/47/
07/32/490150014707
32/49015001470732.
zip

/sdr7/obj/mdp/pairtree
_root/49/01/50/01/47/
07/32/490150014707
32/49015001470732.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, December 13,
2010

/sdr7/obj/mdp/pairtree
_root/49/01/50/01/47/
07/32/490150014707
32/49015001470732.z
ip

January 6, 2011

First Backup Tape
HathiTrust Digital
Copy
/sdr7/obj/mdp/pairtree
_root/49/01/50/00/89/
65/98/490150008965
98/49015000896598.
zip

January 6, 2011

Mirror Site
HathiTrust Digital
Copy
/sdr7/obj/mdp/pairtree
_root/49/01/50/00/89/
65/98/490150008965
98/49015000896598.
zip

January 6, 2011

/sdr7/obj/mdp/pairtree
_root/49/01/50/00/89/
65/98/490150008965
98/49015000896598.
zip

Initial HathiTrust
Digital Copy

On information and
belief, December 15,
2010

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1122

Vernacular Dreams
by Angelo Loukakis

Talking With
Artists: Volume 2 by
Pat Cummings

(a) the title and
author of the
Work;
Talking With
Artists: Volume 1 by
Pat Cummings

Filed 06/29/12 Page 28 of 52

(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;

October 4, 2009

April 8, 2009

3

April 8, 2009

April 9, 2009

April 9, 2009

/sdr17/obj/mdp/pairtr
ee_root/39/01/50/37/7
6/92/65/39015037769
265/39015037769265
.zip
/sdr17/obj/mdp/pairtr
ee_root/39/01/50/37/7
6/92/65/39015037769
265/39015037769265
.zip

/sdr17/obj/mdp/pairtr
ee_root/39/01/50/37/7
6/92/65/39015037769
265/39015037769265
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, September 11,
2006

/sdr17/obj/mdp/pairtr
ee_root/39/01/50/37/7
6/92/65/39015037769
265/39015037769265
.zip

October 4, 2009

September 30, 2009

September 30, 2009

/sdr16/obj/mdp/pairtr
ee_root/39/01/50/29/5
7/08/61/39015029570
861/39015029570861
.zip

/sdr16/obj/mdp/pairtr
ee_root/39/01/50/29/5
7/08/61/39015029570
861/39015029570861
.zip

/sdr16/obj/mdp/pairtr
ee_root/39/01/50/29/5
7/08/61/39015029570
861/39015029570861
.zip

/sdr16/obj/mdp/pairtr
ee_root/39/01/50/29/5
7/08/61/39015029570
861/39015029570861
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, August 31,
2009

September 8, 2009

Second Backup
Tape HathiTrust
Digital Copy

September 8, 2009

First Backup Tape
HathiTrust Digital
Copy

September 7, 2009

Mirror Site
HathiTrust Digital
Copy

September 7, 2009

Initial HathiTrust
Digital Copy

On information and
belief, August 31,
2009

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1123

Georgia O'Keeffe: a
life by Roxana
Robinson

Summer light by
Roxana Robinson

(a) the title and
author of the
Work;

Filed 06/29/12 Page 29 of 52

(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 28, 2008

Second Backup
Tape HathiTrust
Digital Copy
/sdr9/obj/mdp/pairtree
_root/39/01/50/30/75/
66/65/390150307566
65/39015030756665.z
ip

November 26, 2008

/sdr8/obj/mdp/pairtree
_root/39/01/50/15/44/
99/14/390150154499
14/39015015449914.
zip
/sdr8/obj/mdp/pairtree
_root/39/01/50/15/44/
99/14/390150154499
14/39015015449914.
zip

/sdr8/obj/mdp/pairtree
_root/39/01/50/15/44/
99/14/390150154499
14/39015015449914.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

4

/sdr8/obj/mdp/pairtree
_root/39/01/50/15/44/
99/14/390150154499
14/39015015449914.z
ip

November 26, 2008

December 10, 2008

January 26, 2008

/sdr8/obj/mdp/pairtree
_root/39/01/50/19/34/
54/72/390150193454
72/39015019345472.
zip

/sdr8/obj/mdp/pairtree
_root/39/01/50/19/34/
54/72/390150193454
72/39015019345472.
zip

/sdr8/obj/mdp/pairtree
_root/39/01/50/19/34/
54/72/390150193454
72/39015019345472.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, November 12,
2007

/sdr8/obj/mdp/pairtree
_root/39/01/50/19/34/
54/72/390150193454
72/39015019345472.z
ip

November 28, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr9/obj/mdp/pairtree
_root/39/01/50/30/75/
66/65/390150307566
65/39015030756665.
zip

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr9/obj/mdp/pairtree
_root/39/01/50/30/75/
66/65/390150307566
65/39015030756665.
zip

May 31, 2008

/sdr9/obj/mdp/pairtree
_root/39/01/50/30/75/
66/65/390150307566
65/39015030756665.
zip

Initial HathiTrust
Digital Copy

On information and
belief, March 12,
2008

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1124

Asking for love and
other stories by
Roxana Robinson

A glimpse of scarlet
and other stories by
Roxana Robinson

(a) the title and
author of the
Work;
A glimpse of scarlet
and other stories by
Roxana Robinson

Filed 06/29/12 Page 30 of 52

(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;

January 29, 2010

May 31, 2008

5

December 10, 2008

October 26, 2008

October 26, 2008

/sdr21/obj/mdp/pairtr
ee_root/39/01/50/21/5
6/27/42/39015021562
742/39015021562742
.zip
/sdr21/obj/mdp/pairtr
ee_root/39/01/50/21/5
6/27/42/39015021562
742/39015021562742
.zip

/sdr21/obj/mdp/pairtr
ee_root/39/01/50/21/5
6/27/42/39015021562
742/39015021562742
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 12,
2008

/sdr21/obj/mdp/pairtr
ee_root/39/01/50/21/5
6/27/42/39015021562
742/39015021562742
.zip

January 29, 2010

January 27, 2010

January 27, 2010

/sdr4/obj/mdp/pairtree
_root/39/01/50/22/00/
81/09/390150220081
09/39015022008109.z
ip

/sdr4/obj/mdp/pairtree
_root/39/01/50/22/00/
81/09/390150220081
09/39015022008109.
zip

/sdr4/obj/mdp/pairtree
_root/39/01/50/22/00/
81/09/390150220081
09/39015022008109.
zip

/sdr4/obj/mdp/pairtree
_root/39/01/50/22/00/
81/09/390150220081
09/39015022008109.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, January 20,
2010

November 11, 2009

Second Backup
Tape HathiTrust
Digital Copy

November 11, 2009

First Backup Tape
HathiTrust Digital
Copy

November 11, 2009

Mirror Site
HathiTrust Digital
Copy

November 11, 2009

Initial HathiTrust
Digital Copy

On information and
belief, March 12,
2008

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1125

A perfect stranger:
and other stories by
Roxana Robinson

Sweetwater : a
novel by Roxana
Robinson

(a) the title and
author of the
Work;

Filed 06/29/12 Page 31 of 52

(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 20, 2008

Second Backup
Tape HathiTrust
Digital Copy
/sdr5/obj/mdp/pairtree
_root/39/01/50/37/47/
07/24/390150374707
24/39015037470724.z
ip

December 18, 2008

/sdr9/obj/mdp/pairtree
_root/39/01/50/60/83/
84/90/390150608384
90/39015060838490.
zip
/sdr9/obj/mdp/pairtree
_root/39/01/50/60/83/
84/90/390150608384
90/39015060838490.
zip
/sdr9/obj/mdp/pairtree
_root/39/01/50/60/83/
84/90/390150608384
90/39015060838490.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

6

/sdr9/obj/mdp/pairtree
_root/39/01/50/60/83/
84/90/390150608384
90/39015060838490.z
ip

December 18, 2008

December 10, 2008

September 23, 2008

/sdr6/obj/mdp/pairtree
_root/39/01/50/56/79/
32/87/390150567932
87/39015056793287.
zip

/sdr6/obj/mdp/pairtree
_root/39/01/50/56/79/
32/87/390150567932
87/39015056793287.
zip

/sdr6/obj/mdp/pairtree
_root/39/01/50/56/79/
32/87/390150567932
87/39015056793287.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, May 29, 2008

/sdr6/obj/mdp/pairtree
_root/39/01/50/56/79/
32/87/390150567932
87/39015056793287.z
ip

November 20, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr5/obj/mdp/pairtree
_root/39/01/50/37/47/
07/24/390150374707
24/39015037470724.
zip

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr5/obj/mdp/pairtree
_root/39/01/50/37/47/
07/24/390150374707
24/39015037470724.
zip

July 19, 2008

/sdr5/obj/mdp/pairtree
_root/39/01/50/37/47/
07/24/390150374707
24/39015037470724.
zip

Initial HathiTrust
Digital Copy

On information and
belief, March 17,
2008

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1126

Embarkation by J.R.
Salamanca

Southern light : a
novel by J.R.
Salamanca

(a) the title and
author of the
Work;
Marguerite Duras à
Montréal by André
Roy

Filed 06/29/12 Page 32 of 52

(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;

April 9, 2009

7

March 25, 2009

March 25, 2009

March 26, 2009

March 26, 2009

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/48/8
8/16/46/39015048881
646/39015048881646
.zip
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/48/8
8/16/46/39015048881
646/39015048881646
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/48/8
8/16/46/39015048881
646/39015048881646
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, June 27, 2006

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/48/8
8/16/46/39015048881
646/39015048881646
.zip

April 9, 2009

April 9, 2009

April 9, 2009

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/10/7
3/51/19/39015010735
119/39015010735119
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/10/7
3/51/19/39015010735
119/39015010735119
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/10/7
3/51/19/39015010735
119/39015010735119
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/10/7
3/51/19/39015010735
119/39015010735119
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, June 27, 2006

October 29, 2008

Second Backup
Tape HathiTrust
Digital Copy

October 29, 2008

First Backup Tape
HathiTrust Digital
Copy

December 10, 2008

Mirror Site
HathiTrust Digital
Copy

October 20, 2008

Initial HathiTrust
Digital Copy

On information and
belief, March 25,
2008

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1127

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 33 of 52

(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;

April 3, 2009

Second Backup
Tape HathiTrust
Digital Copy
/sdr7/obj/mdp/pairtree
_root/39/01/50/02/75/
43/42/390150027543
42/39015002754342.z
ip

October 14, 2008

/sdr2/obj/mdp/pairtree
_root/39/01/50/02/75/
43/59/390150027543
59/39015002754359.
zip
/sdr2/obj/mdp/pairtree
_root/39/01/50/02/75/
43/59/390150027543
59/39015002754359.
zip

/sdr2/obj/mdp/pairtree
_root/39/01/50/02/75/
43/59/390150027543
59/39015002754359.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

8

/sdr2/obj/mdp/pairtree
_root/39/01/50/02/75/
43/59/390150027543
59/39015002754359.z
ip

October 14, 2008

December 10, 2008

August 14, 2008

/sdr2/obj/mdp/pairtree
_root/39/01/50/02/75/
45/32/390150027545
32/39015002754532.
zip

/sdr2/obj/mdp/pairtree
_root/39/01/50/02/75/
45/32/390150027545
32/39015002754532.
zip

/sdr2/obj/mdp/pairtree
_root/39/01/50/02/75/
45/32/390150027545
32/39015002754532.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, September 20,
2007

/sdr2/obj/mdp/pairtree
_root/39/01/50/02/75/
45/32/390150027545
32/39015002754532.z
ip

April 3, 2009

First Backup Tape
HathiTrust Digital
Copy
/sdr7/obj/mdp/pairtree
_root/39/01/50/02/75/
43/42/390150027543
42/39015002754342.
zip

April 3, 2009

Mirror Site
HathiTrust Digital
Copy
/sdr7/obj/mdp/pairtree
_root/39/01/50/02/75/
43/42/390150027543
42/39015002754342.
zip

April 3, 2009

/sdr7/obj/mdp/pairtree
_root/39/01/50/02/75/
43/42/390150027543
42/39015002754342.
zip

Initial HathiTrust
Digital Copy

On information and
belief, June 27, 2006

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1128

Oberammergau by
James Shapiro

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 34 of 52

(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;

December 5, 2008

9

October 24, 2008

December 10, 2008

October 31, 2008

October 31, 2008

/sdr7/obj/mdp/pairtree
_root/39/01/50/02/75/
43/67/390150027543
67/39015002754367.
zip
/sdr7/obj/mdp/pairtree
_root/39/01/50/02/75/
43/67/390150027543
67/39015002754367.
zip

/sdr7/obj/mdp/pairtree
_root/39/01/50/02/75/
43/67/390150027543
67/39015002754367.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 20,
2008

/sdr7/obj/mdp/pairtree
_root/39/01/50/02/75/
43/67/390150027543
67/39015002754367.z
ip

December 5, 2008

December 10, 2008

May 22, 2008

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/42/9
5/43/08/39015042954
308/39015042954308
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/42/9
5/43/08/39015042954
308/39015042954308
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/42/9
5/43/08/39015042954
308/39015042954308
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/42/9
5/43/08/39015042954
308/39015042954308
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 12,
2008

October 31, 2008

Second Backup
Tape HathiTrust
Digital Copy

October 31, 2008

First Backup Tape
HathiTrust Digital
Copy

December 10, 2008

Mirror Site
HathiTrust Digital
Copy

October 31, 2008

Initial HathiTrust
Digital Copy

On information and
belief, March 12,
2008

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1129

Watching me,
watching you by
Fay Weldon

Jesse James : last
rebel of the Civil
War by T.J. Stiles

(a) the title and
author of the
Work;

Filed 06/29/12 Page 35 of 52

(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;

January 5, 2009

Second Backup
Tape HathiTrust
Digital Copy
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/42/5
5/31/34/39015042553
134/39015042553134
.zip

December 3, 2008

/sdr11/obj/mdp/pairtr
ee_root/39/01/50/16/9
8/17/58/39015016981
758/39015016981758
.zip
/sdr11/obj/mdp/pairtr
ee_root/39/01/50/16/9
8/17/58/39015016981
758/39015016981758
.zip
/sdr11/obj/mdp/pairtr
ee_root/39/01/50/16/9
8/17/58/39015016981
758/39015016981758
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

10

/sdr11/obj/mdp/pairtr
ee_root/39/01/50/16/9
8/17/58/39015016981
758/39015016981758
.zip

December 3, 2008

December 2, 2008

December 2, 2008

/sdr11/obj/mdp/pairtr
ee_root/39/01/50/55/8
2/32/00/39015055823
200/39015055823200
.zip

/sdr11/obj/mdp/pairtr
ee_root/39/01/50/55/8
2/32/00/39015055823
200/39015055823200
.zip

/sdr11/obj/mdp/pairtr
ee_root/39/01/50/55/8
2/32/00/39015055823
200/39015055823200
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 13,
2008

/sdr11/obj/mdp/pairtr
ee_root/39/01/50/55/8
2/32/00/39015055823
200/39015055823200
.zip

January 5, 2009

First Backup Tape
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/42/5
5/31/34/39015042553
134/39015042553134
.zip

January 5, 2009

Mirror Site
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/42/5
5/31/34/39015042553
134/39015042553134
.zip

January 5, 2009

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/42/5
5/31/34/39015042553
134/39015042553134
.zip

Initial HathiTrust
Digital Copy

On information and
belief, September 23,
2008

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1130

Remember me by
Fay Weldon

Puffball : a novel by
Fay Weldon

(a) the title and
author of the
Work;
Praxis : a novel by
Fay Weldon

Filed 06/29/12 Page 36 of 52

(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 3, 2008

July 19, 2008

11

December 10, 2008

December 6, 2008

December 6, 2008

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/01/5
2/68/16/39015001526
816/39015001526816
.zip
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/01/5
2/68/16/39015001526
816/39015001526816
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/01/5
2/68/16/39015001526
816/39015001526816
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 13,
2008

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/01/5
2/68/16/39015001526
816/39015001526816
.zip

November 3, 2008

December 10, 2008

October 31, 2008

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/01/7
8/85/49/39015001788
549/39015001788549
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/01/7
8/85/49/39015001788
549/39015001788549
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/01/7
8/85/49/39015001788
549/39015001788549
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/01/7
8/85/49/39015001788
549/39015001788549
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 13,
2008

October 28, 2008

Second Backup
Tape HathiTrust
Digital Copy

October 28, 2008

First Backup Tape
HathiTrust Digital
Copy

December 10, 2008

Mirror Site
HathiTrust Digital
Copy

October 27, 2008

Initial HathiTrust
Digital Copy

On information and
belief, March 18,
2008

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1131

The hearts and lives
of men by Fay
Weldon

The heart of the
country by Fay
Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 37 of 52

(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
/sdr7/obj/mdp/pairtree
_root/39/01/50/04/12/
41/89/390150041241
89/39015004124189.z
ip

November 4, 2009

/sdr8/obj/mdp/pairtree
_root/39/01/50/12/99/
54/89/390150129954
89/39015012995489.
zip
/sdr8/obj/mdp/pairtree
_root/39/01/50/12/99/
54/89/390150129954
89/39015012995489.
zip
/sdr8/obj/mdp/pairtree
_root/39/01/50/12/99/
54/89/390150129954
89/39015012995489.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

12

/sdr8/obj/mdp/pairtree
_root/39/01/50/12/99/
54/89/390150129954
89/39015012995489.z
ip

November 4, 2009

November 3, 2009

November 3, 2009

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/12/9
9/26/19/39015012992
619/39015012992619
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/12/9
9/26/19/39015012992
619/39015012992619
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/12/9
9/26/19/39015012992
619/39015012992619
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 13,
2008

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/12/9
9/26/19/39015012992
619/39015012992619
.zip

November 3, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr7/obj/mdp/pairtree
_root/39/01/50/04/12/
41/89/390150041241
89/39015004124189.
zip

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr7/obj/mdp/pairtree
_root/39/01/50/04/12/
41/89/390150041241
89/39015004124189.
zip

October 31, 2008

/sdr7/obj/mdp/pairtree
_root/39/01/50/04/12/
41/89/390150041241
89/39015004124189.
zip

Initial HathiTrust
Digital Copy

On information and
belief, March 13,
2008

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1132

The heart of the
country by Fay
Weldon

The Shrapnel
Academy by Fay
Weldon

(a) the title and
author of the
Work;
The rules of life by
Fay Weldon

Filed 06/29/12 Page 38 of 52

(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 3, 2008

13

October 11, 2009

October 11, 2009

October 13, 2009

October 13, 2009

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/14/7
2/24/10/39015014722
410/39015014722410
.zip
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/14/7
2/24/10/39015014722
410/39015014722410
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/14/7
2/24/10/39015014722
410/39015014722410
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 21,
2006

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/14/7
2/24/10/39015014722
410/39015014722410
.zip

November 3, 2008

December 10, 2008

October 31, 2008

/sdr8/obj/mdp/pairtree
_root/39/01/50/12/98/
86/74/390150129886
74/39015012988674.z
ip

/sdr8/obj/mdp/pairtree
_root/39/01/50/12/98/
86/74/390150129886
74/39015012988674.
zip

/sdr8/obj/mdp/pairtree
_root/39/01/50/12/98/
86/74/390150129886
74/39015012988674.
zip

/sdr8/obj/mdp/pairtree
_root/39/01/50/12/98/
86/74/390150129886
74/39015012988674.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 13,
2008

November 17, 2008

Second Backup
Tape HathiTrust
Digital Copy

November 17, 2008

First Backup Tape
HathiTrust Digital
Copy

December 10, 2008

Mirror Site
HathiTrust Digital
Copy

July 19, 2008

Initial HathiTrust
Digital Copy

On information and
belief, March 13,
2008

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1133

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 39 of 52

(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 18, 2009

Second Backup
Tape HathiTrust
Digital Copy
/sdr4/obj/mdp/pairtree
_root/39/01/50/25/81/
37/37/390150258137
37/39015025813737.z
ip

November 29, 2008

/sdr8/obj/mdp/pairtree
_root/39/01/50/19/98/
21/18/390150199821
18/39015019982118.
zip
/sdr8/obj/mdp/pairtree
_root/39/01/50/19/98/
21/18/390150199821
18/39015019982118.
zip

/sdr8/obj/mdp/pairtree
_root/39/01/50/19/98/
21/18/390150199821
18/39015019982118.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

14

/sdr8/obj/mdp/pairtree
_root/39/01/50/19/98/
21/18/390150199821
18/39015019982118.z
ip

November 29, 2008

December 10, 2008

July 19, 2008

/sdr13/obj/mdp/pairtr
ee_root/39/01/50/47/5
6/16/03/39015047561
603/39015047561603
.zip

/sdr13/obj/mdp/pairtr
ee_root/39/01/50/47/5
6/16/03/39015047561
603/39015047561603
.zip

/sdr13/obj/mdp/pairtr
ee_root/39/01/50/47/5
6/16/03/39015047561
603/39015047561603
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 18,
2008

/sdr13/obj/mdp/pairtr
ee_root/39/01/50/47/5
6/16/03/39015047561
603/39015047561603
.zip

June 18, 2009

First Backup Tape
HathiTrust Digital
Copy
/sdr4/obj/mdp/pairtree
_root/39/01/50/25/81/
37/37/390150258137
37/39015025813737.
zip

June 15, 2009

Mirror Site
HathiTrust Digital
Copy
/sdr4/obj/mdp/pairtree
_root/39/01/50/25/81/
37/37/390150258137
37/39015025813737.
zip

June 15, 2009

/sdr4/obj/mdp/pairtree
_root/39/01/50/25/81/
37/37/390150258137
37/39015025813737.
zip

Initial HathiTrust
Digital Copy

On information and
belief, March 18,
2008

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1134

Darcy’s utopia by
Fay Weldon

Little sisters by Fay
Weldon

(a) the title and
author of the
Work;

Second Backup
Tape HathiTrust
Digital Copy
November 3, 2008

Filed 06/29/12 Page 40 of 52

(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

15

October 31, 2008

December 10, 2008

November 3, 2008

November 3, 2008

/sdr8/obj/mdp/pairtree
_root/39/01/50/15/51/
98/15/390150155198
15/39015015519815.
zip

/sdr8/obj/mdp/pairtree
_root/39/01/50/15/51/
98/15/390150155198
15/39015015519815.
zip

/sdr8/obj/mdp/pairtree
_root/39/01/50/15/51/
98/15/390150155198
15/39015015519815.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 13,
2008

/sdr8/obj/mdp/pairtree
_root/39/01/50/15/51/
98/15/390150155198
15/39015015519815.z
ip

November 26, 2008

December 10, 2008

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/14/7
5/38/52/39015014753
852/39015014753852
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/14/7
5/38/52/39015014753
852/39015014753852
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/14/7
5/38/52/39015014753
852/39015014753852
.zip

May 9, 2007

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/14/7
5/38/52/39015014753
852/39015014753852
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

First Backup Tape
HathiTrust Digital
Copy
November 3, 2008

Mirror Site
HathiTrust Digital
Copy
December 10, 2008

On information and
belief, January 2,
2007

October 31, 2008

Initial HathiTrust
Digital Copy

On information and
belief, March 13,
2008

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1135

Moon over
Minneapolis/Why
she couldn't stay by
Fay Weldon

The cloning of
Joanna May by Fay
Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 41 of 52

(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;

January 29, 2010

Second Backup
Tape HathiTrust
Digital Copy
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/18/9
3/34/92/39015018933
492/39015018933492
.zip

November 3, 2008

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/21/9
9/13/62/39015021991
362/39015021991362
.zip
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/21/9
9/13/62/39015021991
362/39015021991362
.zip
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/21/9
9/13/62/39015021991
362/39015021991362
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

16

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/21/9
9/13/62/39015021991
362/39015021991362
.zip

November 3, 2008

December 10, 2008

October 31, 2008

/sdr21/obj/mdp/pairtr
ee_root/39/01/50/19/4
3/73/78/39015019437
378/39015019437378
.zip

/sdr21/obj/mdp/pairtr
ee_root/39/01/50/19/4
3/73/78/39015019437
378/39015019437378
.zip

/sdr21/obj/mdp/pairtr
ee_root/39/01/50/19/4
3/73/78/39015019437
378/39015019437378
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 13,
2008

/sdr21/obj/mdp/pairtr
ee_root/39/01/50/19/4
3/73/78/39015019437
378/39015019437378
.zip

January 29, 2010

First Backup Tape
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/18/9
3/34/92/39015018933
492/39015018933492
.zip

January 27, 2010

Mirror Site
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/18/9
3/34/92/39015018933
492/39015018933492
.zip

January 27, 2010

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/18/9
3/34/92/39015018933
492/39015018933492
.zip

Initial HathiTrust
Digital Copy

On information and
belief, January 20,
2010

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1136

Life force by Fay
Weldon

Growing rich by
Fay Weldon

(a) the title and
author of the
Work;
Life force by Fay
Weldon

Filed 06/29/12 Page 42 of 52

(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 4, 2009

17

February 14, 2009

February 14, 2009

February 14, 2009

February 14, 2009

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/25/2
0/07/29/39015025200
729/39015025200729
.zip
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/25/2
0/07/29/39015025200
729/39015025200729
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/25/2
0/07/29/39015025200
729/39015025200729
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 18,
2008

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/25/2
0/07/29/39015025200
729/39015025200729
.zip

November 4, 2009

November 3, 2009

November 3, 2009

/sdr6/obj/mdp/pairtree
_root/39/01/50/56/89/
04/63/390150568904
63/39015056890463.z
ip

/sdr6/obj/mdp/pairtree
_root/39/01/50/56/89/
04/63/390150568904
63/39015056890463.
zip

/sdr6/obj/mdp/pairtree
_root/39/01/50/56/89/
04/63/390150568904
63/39015056890463.
zip

/sdr6/obj/mdp/pairtree
_root/39/01/50/56/89/
04/63/390150568904
63/39015056890463.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 13,
2008

November 4, 2009

Second Backup
Tape HathiTrust
Digital Copy

November 4, 2009

First Backup Tape
HathiTrust Digital
Copy

November 3, 2009

Mirror Site
HathiTrust Digital
Copy

November 3, 2009

Initial HathiTrust
Digital Copy

On information and
belief, March 13,
2008

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1137

Splitting by Fay
Weldon

Affliction by Fay
Weldon

Trouble by Fay
Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 43 of 52

(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;

January 29, 2010

Second Backup
Tape HathiTrust
Digital Copy
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/1
6/61/96/39015055166
196/39015055166196
.zip

November 12, 2008

/sdr6/obj/mdp/pairtree
_root/39/01/50/34/41/
08/63/390150344108
63/39015034410863.
zip
/sdr6/obj/mdp/pairtree
_root/39/01/50/34/41/
08/63/390150344108
63/39015034410863.
zip

/sdr6/obj/mdp/pairtree
_root/39/01/50/34/41/
08/63/390150344108
63/39015034410863.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

18

/sdr6/obj/mdp/pairtree
_root/39/01/50/34/41/
08/63/390150344108
63/39015034410863.z
ip

November 12, 2008

December 10, 2008

July 19, 2008

/sdr21/obj/mdp/pairtr
ee_root/39/01/50/32/7
1/94/48/39015032719
448/39015032719448
.zip

/sdr21/obj/mdp/pairtr
ee_root/39/01/50/32/7
1/94/48/39015032719
448/39015032719448
.zip

/sdr21/obj/mdp/pairtr
ee_root/39/01/50/32/7
1/94/48/39015032719
448/39015032719448
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 13,
2008

/sdr21/obj/mdp/pairtr
ee_root/39/01/50/32/7
1/94/48/39015032719
448/39015032719448
.zip

January 29, 2010

First Backup Tape
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/1
6/61/96/39015055166
196/39015055166196
.zip

January 27, 2010

Mirror Site
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/1
6/61/96/39015055166
196/39015055166196
.zip

January 27, 2010

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/1
6/61/96/39015055166
196/39015055166196
.zip

Initial HathiTrust
Digital Copy

On information and
belief, January 20,
2010

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1138

Leader of the band
by Fay Weldon

Wicked women :
stories by Fay
Weldon

(a) the title and
author of the
Work;

Second Backup
Tape HathiTrust
Digital Copy
November 4, 2009

Filed 06/29/12 Page 44 of 52

(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 4, 2010

July 19, 2008

19

December 10, 2008

November 18, 2008

November 18, 2008

/sdr4/obj/mdp/pairtree
_root/49/01/50/02/45/
16/73/490150024516
73/49015002451673.
zip

/sdr4/obj/mdp/pairtree
_root/49/01/50/02/45/
16/73/490150024516
73/49015002451673.
zip

/sdr4/obj/mdp/pairtree
_root/49/01/50/02/45/
16/73/490150024516
73/49015002451673.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 13,
2008

/sdr4/obj/mdp/pairtree
_root/49/01/50/02/45/
16/73/490150024516
73/49015002451673.z
ip

November 4, 2010

October 3, 2010

/sdr6/obj/mdp/pairtree
_root/39/01/50/34/89/
79/45/390150348979
45/39015034897945.z
ip

/sdr6/obj/mdp/pairtree
_root/39/01/50/34/89/
79/45/390150348979
45/39015034897945.
zip

/sdr6/obj/mdp/pairtree
_root/39/01/50/34/89/
79/45/390150348979
45/39015034897945.
zip

October 31, 2010

/sdr6/obj/mdp/pairtree
_root/39/01/50/34/89/
79/45/390150348979
45/39015034897945.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

First Backup Tape
HathiTrust Digital
Copy
November 4, 2009

Mirror Site
HathiTrust Digital
Copy
November 3, 2009

On information and
belief, August 17,
2010

November 3, 2009

Initial HathiTrust
Digital Copy

On information and
belief, March 18,
2008

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1139

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 45 of 52

(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 18, 2008

Second Backup
Tape HathiTrust
Digital Copy
/sdr6/obj/mdp/pairtree
_root/39/01/50/55/10/
98/16/390150551098
16/39015055109816.z
ip

November 18, 2008

/sdr6/obj/mdp/pairtree
_root/39/01/50/55/10/
99/64/390150551099
64/39015055109964.
zip
/sdr6/obj/mdp/pairtree
_root/39/01/50/55/10/
99/64/390150551099
64/39015055109964.
zip

/sdr6/obj/mdp/pairtree
_root/39/01/50/55/10/
99/64/390150551099
64/39015055109964.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

20

/sdr6/obj/mdp/pairtree
_root/39/01/50/55/10/
99/64/390150551099
64/39015055109964.z
ip

November 18, 2008

December 10, 2008

July 19, 2008

/sdr6/obj/mdp/pairtree
_root/39/01/50/55/10/
99/72/390150551099
72/39015055109972.
zip

/sdr6/obj/mdp/pairtree
_root/39/01/50/55/10/
99/72/390150551099
72/39015055109972.
zip

/sdr6/obj/mdp/pairtree
_root/39/01/50/55/10/
99/72/390150551099
72/39015055109972.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 13,
2008

/sdr6/obj/mdp/pairtree
_root/39/01/50/55/10/
99/72/390150551099
72/39015055109972.z
ip

November 18, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr6/obj/mdp/pairtree
_root/39/01/50/55/10/
98/16/390150551098
16/39015055109816.
zip

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr6/obj/mdp/pairtree
_root/39/01/50/55/10/
98/16/390150551098
16/39015055109816.
zip

July 19, 2008

/sdr6/obj/mdp/pairtree
_root/39/01/50/55/10/
98/16/390150551098
16/39015055109816.
zip

Initial HathiTrust
Digital Copy

On information and
belief, March 13,
2008

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1140

Nothing to wear and
nowhere to hide:
stories by Fay
Weldon

Life force by Fay
Weldon

(a) the title and
author of the
Work;
A hard time to be a
father: a collection
of short stories by
Fay Weldon

Filed 06/29/12 Page 46 of 52

(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 10, 2008

/sdr4/obj/mdp/pairtree
_root/39/01/50/29/18/
60/64/390150291860
64/39015029186064.
zip
/sdr4/obj/mdp/pairtree
_root/39/01/50/29/18/
60/64/390150291860
64/39015029186064.
zip

/sdr4/obj/mdp/pairtree
_root/39/01/50/29/18/
60/64/390150291860
64/39015029186064.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

21

/sdr4/obj/mdp/pairtree
_root/39/01/50/29/18/
60/64/390150291860
64/39015029186064.z
ip

November 10, 2008

December 10, 2008

July 19, 2008

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/1
0/98/24/39015055109
824/39015055109824
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/1
0/98/24/39015055109
824/39015055109824
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/1
0/98/24/39015055109
824/39015055109824
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/1
0/98/24/39015055109
824/39015055109824
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 18,
2008

November 1, 2008

Second Backup
Tape HathiTrust
Digital Copy

November 1, 2008

First Backup Tape
HathiTrust Digital
Copy

December 10, 2008

Mirror Site
HathiTrust Digital
Copy

October 31, 2008

Initial HathiTrust
Digital Copy

On information and
belief, March 13,
2008

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1141

Godless in Eden : a
book of essays by
Fay Weldon

Big women by Fay
Weldon

(a) the title and
author of the
Work;

Second Backup
Tape HathiTrust
Digital Copy
November 1, 2008

Filed 06/29/12 Page 47 of 52

(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 29, 2008

22

October 31, 2008

December 10, 2008

October 31, 2008

October 31, 2008

/sdr8/obj/mdp/pairtree
_root/39/01/50/40/36/
71/49/390150403671
49/39015040367149.
zip

/sdr8/obj/mdp/pairtree
_root/39/01/50/40/36/
71/49/390150403671
49/39015040367149.
zip

/sdr8/obj/mdp/pairtree
_root/39/01/50/40/36/
71/49/390150403671
49/39015040367149.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 13,
2008

/sdr8/obj/mdp/pairtree
_root/39/01/50/40/36/
71/49/390150403671
49/39015040367149.z
ip

November 29, 2008

December 10, 2008

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/8
5/96/00/39015055859
600/39015055859600
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/8
5/96/00/39015055859
600/39015055859600
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/8
5/96/00/39015055859
600/39015055859600
.zip

July 19, 2008

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/8
5/96/00/39015055859
600/39015055859600
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

First Backup Tape
HathiTrust Digital
Copy
November 1, 2008

Mirror Site
HathiTrust Digital
Copy
December 10, 2008

On information and
belief, March 13,
2008

October 31, 2008

Initial HathiTrust
Digital Copy

On information and
belief, March 13,
2008

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1142

Auto da fay by Fay
Weldon

The Bulgari
connection by Fay
Weldon

Rhode Island blues
by Fay Weldon

(a) the title and
author of the
Work;

Filed 06/29/12 Page 48 of 52

(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
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/48/5
7/82/34/39015048578
234/39015048578234
.zip

November 17, 2008

/sdr6/obj/mdp/pairtree
_root/39/01/50/53/74/
68/41/390150537468
41/39015053746841.
zip
/sdr6/obj/mdp/pairtree
_root/39/01/50/53/74/
68/41/390150537468
41/39015053746841.
zip

/sdr6/obj/mdp/pairtree
_root/39/01/50/53/74/
68/41/390150537468
41/39015053746841.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

23

/sdr6/obj/mdp/pairtree
_root/39/01/50/53/74/
68/41/390150537468
41/39015053746841.z
ip

November 17, 2008

December 10, 2008

July 19, 2008

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/49/5
2/44/27/39015049524
427/39015049524427
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/49/5
2/44/27/39015049524
427/39015049524427
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/49/5
2/44/27/39015049524
427/39015049524427
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, March 13,
2008

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/49/5
2/44/27/39015049524
427/39015049524427
.zip

October 31, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/48/5
7/82/34/39015048578
234/39015048578234
.zip

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr10/obj/mdp/pairtr
ee_root/39/01/50/48/5
7/82/34/39015048578
234/39015048578234
.zip

October 27, 2008

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/48/5
7/82/34/39015048578
234/39015048578234
.zip

Initial HathiTrust
Digital Copy

On information and
belief, March 18,
2008

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1143

Wicked women :
stories by Fay
Weldon

Flood warning : a
play by Fay Weldon

(a) the title and
author of the
Work;

Second Backup
Tape HathiTrust
Digital Copy
November 12, 2009

Filed 06/29/12 Page 49 of 52

(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;

July 10, 2009

24

January 27, 2010

January 27, 2010

January 29, 2010

January 29, 2010

/sdr14/obj/mdp/pairtr
ee_root/39/01/50/58/1
1/87/98/39015058118
798/39015058118798
.zip

/sdr14/obj/mdp/pairtr
ee_root/39/01/50/58/1
1/87/98/39015058118
798/39015058118798
.zip

/sdr14/obj/mdp/pairtr
ee_root/39/01/50/58/1
1/87/98/39015058118
798/39015058118798
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, January 20,
2010

/sdr14/obj/mdp/pairtr
ee_root/39/01/50/58/1
1/87/98/39015058118
798/39015058118798
.zip

July 10, 2009

July 10, 2009

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/1
8/15/75/39015055181
575/39015055181575
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/1
8/15/75/39015055181
575/39015055181575
.zip

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/1
8/15/75/39015055181
575/39015055181575
.zip

July 10, 2009

/sdr10/obj/mdp/pairtr
ee_root/39/01/50/55/1
8/15/75/39015055181
575/39015055181575
.zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

First Backup Tape
HathiTrust Digital
Copy
November 12, 2009

Mirror Site
HathiTrust Digital
Copy
November 11, 2009

On information and
belief, March 3, 2008

November 11, 2009

Initial HathiTrust
Digital Copy

On information and
belief, March 18,
2008

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1144

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 50 of 52

(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 18, 2008

Second Backup
Tape HathiTrust
Digital Copy
/sdr21/obj/mdp/pairtr
ee_root/39/01/50/41/7
7/09/52/39015041770
952/39015041770952
.zip

December 18, 2008

/sdr9/obj/mdp/pairtree
_root/39/01/50/62/61/
12/42/390150626112
42/39015062611242.
zip
/sdr9/obj/mdp/pairtree
_root/39/01/50/62/61/
12/42/390150626112
42/39015062611242.
zip

/sdr9/obj/mdp/pairtree
_root/39/01/50/62/61/
12/42/390150626112
42/39015062611242.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

25

/sdr9/obj/mdp/pairtree
_root/39/01/50/62/61/
12/42/390150626112
42/39015062611242.z
ip

December 18, 2008

December 10, 2008

October 2, 2008

/sdr9/obj/mdp/pairtree
_root/39/01/50/60/12/
34/14/390150601234
14/39015060123414.
zip

/sdr9/obj/mdp/pairtree
_root/39/01/50/60/12/
34/14/390150601234
14/39015060123414.
zip

/sdr9/obj/mdp/pairtree
_root/39/01/50/60/12/
34/14/390150601234
14/39015060123414.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

On information and
belief, May 29, 2008

/sdr9/obj/mdp/pairtree
_root/39/01/50/60/12/
34/14/390150601234
14/39015060123414.z
ip

December 18, 2008

First Backup Tape
HathiTrust Digital
Copy
/sdr21/obj/mdp/pairtr
ee_root/39/01/50/41/7
7/09/52/39015041770
952/39015041770952
.zip

December 10, 2008

Mirror Site
HathiTrust Digital
Copy
/sdr21/obj/mdp/pairtr
ee_root/39/01/50/41/7
7/09/52/39015041770
952/39015041770952
.zip

September 21, 2008

/sdr21/obj/mdp/pairtr
ee_root/39/01/50/41/7
7/09/52/39015041770
952/39015041770952
.zip

Initial HathiTrust
Digital Copy

On information and
belief, May 28, 2008

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

Master Digital Copy

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1145

(a) the title and
author of the
Work;

Second Backup
Tape HathiTrust
Digital Copy
December 19, 2008

Filed 06/29/12 Page 51 of 52

(b) the date
the digital
copy was
created;
(j) the
Virtual
Location of
the digital
copy;
/sdr9/obj/mdp/pairtree
_root/39/01/50/70/73/
93/81/390150707393
81/39015070739381.
zip

Such information is
not in Defendant’s,
the University’s, or
the Library’s
possession, custody,
or control.

26

September 22, 2008

Initial HathiTrust
Digital Copy

On information and
belief, May 28, 2008

Master Digital Copy

/sdr9/obj/mdp/pairtree
_root/39/01/50/70/73/
93/81/390150707393
81/39015070739381.z
ip

First Backup Tape
HathiTrust Digital
Copy
December 19, 2008

/sdr9/obj/mdp/pairtree
_root/39/01/50/70/73/
93/81/390150707393
81/39015070739381.
zip

Mirror Site
HathiTrust Digital
Copy
December 10, 2008

/sdr9/obj/mdp/pairtree
_root/39/01/50/70/73/
93/81/390150707393
81/39015070739381.
zip

Exhibit A to Responses to Plaintiff’s First Set of Interrogatories to Defendant Mary Sue Coleman
Interrogatory No. 3

Case 1:11-cv-06351-HB Document 114-75

A-1146

A-1147
Case 1:11-cv-06351-HB Document 114-75

Filed 06/29/12 Page 52 of 52

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

(the “University”).
2.

All of the information provided in the attached Responses to Plaintiffs’ First Set

of Interrogatories to Defendant Mary Sue Coleman 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 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-1148
Case 1:11-cv-06351-HB Document 114-78

Filed 06/29/12 Page 1 of 17

EXHIBIT 78

A-1149
Case 1:11-cv-06351-HB Document 114-78

Filed 06/29/12 Page 2 of 17

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 KEVIN REILLY

A-1150
Case 1:11-cv-06351-HB Document 114-78

Filed 06/29/12 Page 3 of 17

Defendant Kevin Reilly (“Defendant”), in his official capacity as President of The
University of Wisconsin System (the “University”) states the following objections and responses
to Plaintiffs’ First Set of Interrogatories to Defendant Kevin Reilly 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-1151
Case 1:11-cv-06351-HB Document 114-78

Filed 06/29/12 Page 4 of 17

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, and/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/or 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-1152
Case 1:11-cv-06351-HB Document 114-78

8.

Filed 06/29/12 Page 5 of 17

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-1153
Case 1:11-cv-06351-HB Document 114-78

13.

Filed 06/29/12 Page 6 of 17

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-1154
Case 1:11-cv-06351-HB Document 114-78

3.

Filed 06/29/12 Page 7 of 17

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 Kevin
Reilly (“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-1155
Case 1:11-cv-06351-HB Document 114-78

Filed 06/29/12 Page 8 of 17

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-1156
Case 1:11-cv-06351-HB Document 114-78

Filed 06/29/12 Page 9 of 17

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-1157
Case 1:11-cv-06351-HB Document 114-78

Filed 06/29/12 Page 10 of 17

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)

Google Inc. (“Google”) provided the Library with a list of candidate works for

digitization, which included the Works listed on Schedule A. 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 individual who was primarily responsible for such actions is Ed Van Gemert,
Deputy Director of Libraries for the University. For each of the foregoing actions that was
directed or performed by Google, the individuals who were primarily responsible for such
actions are, upon information and belief, Irene Zimmerman, Interim Associate Director for
Central Technical Services, Google Project Manager, and Jeanne Witte, Google Operations
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;
9

A-1158
Case 1:11-cv-06351-HB Document 114-78

Filed 06/29/12 Page 11 of 17

(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, 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
10

A-1159
Case 1:11-cv-06351-HB Document 114-78

Filed 06/29/12 Page 12 of 17

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
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:

11

A-1160
Case 1:11-cv-06351-HB Document 114-78

(a)

Filed 06/29/12 Page 13 of 17

the title and author of the Works are:

Oss målvakter emellan, by Erik Grundström (Alba)
Den umuligen friheten: Henrik Ibsen og moderniteten, by Helge Rønning (Gylendal)
Je cours plus vite que la lycose: poèmes, by Danièle Simpson (Naaman)
(b)

upon information and belief, Master Digital Copies of each Work listed on

Schedule A were created on the following dates:
Oss målvakter emellan – January 10, 2010
Den umuligen friheten: Henrik Ibsen og moderniteten – November 6, 2009
Je cours plus vite que la lycose: poèmes – April 15, 2010.
(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.
12

A-1161
Case 1:11-cv-06351-HB Document 114-78

(h)

Filed 06/29/12 Page 14 of 17

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.
(i)

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)

Ed Van Gemert, Deputy Director of Libraries for the University, supervised the

transfer to Google of the Master Print Copies of each Work listed on Schedule A, with the
assistance of Irene Zimmerman, Interim Associate Director for Central Technical Services,
Google Project Manager, and Jeanne Witte, Google Operations Manager. Mr. Van Gemert was
not directly involved in the creation of the Master Digital Copy nor, upon information and belief,
were Ms. Zimmerman or Ms. Witte.
(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

13

A-1162
Case 1:11-cv-06351-HB Document 114-78

Filed 06/29/12 Page 15 of 17

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.
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 511,432 volumes that, upon information and belief, were digitized by
Google and are now in the HDL. Defendant does not have an estimate of the number of such
works 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 generally indicating its support for the initiative on April 25,
2011, the University has not participated in, nor taken any actions whatsoever in connection
with, the University of Michigan library’s initiative to, inter alia, identify “orphan works”—incopyright works for which the copyright holder cannot be found—and eventually to make lawful
uses of these works, which the University of Michigan library calls the “Orphan Works Project.”

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,
14

A-1163
Case 1:11-cv-06351-HB Document 114-78

Filed 06/29/12 Page 16 of 17

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 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 generally indicating its support for the
“Orphan Works Project” on April 25, 2011, the University has not participated in, nor taken any
actions whatsoever in connection with, the “Orphan Works Project.”
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

15

I A-1164 I
Case 1:11-cv-06351-HB Document 114-78

Filed 06/29/12 Page 17 of 17

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A-1165
Case 1:11-cv-06351-HB Document 114-86

Filed 06/29/12 Page 1 of 3

EXHIBIT 86

I A-1166 I
"secure cheap advertising" - Google Search

http://www.google.com/search?q="secure+cheap+advertising"&btnG=Se...

Case 1:11-cv-06351-HB Document 114-86
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The latest form which the business sagacity behind Harvard University
has taken to secure cheap advertising for the institution is to lend out
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No cover Either Novel Effort to Secure Cheap Advertising or It's a Unique Gift.
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Dressing room walls were considered places where one could secure
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A-1167
"secure cheap advertising" - Google Search

http://www.google.com/search?q="secure+cheap+advertising"&btnG=Se...

Case 1:11-cv-06351-HB Document 114-86

Filed 06/29/12 Page 3 of 3

or black "liners," which was a thin ...

Glued to the box: television criticism from the Observer, 1979-82
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Clive James - 1983 - 280 pages - Snippet view
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A-1168
Case 1:11-cv-06351-HB Document 114-94

Filed 06/29/12 Page 1 of 2

EXHIBIT 94

A-1169
Case 1:11-cv-06351-HB Document 114-94

Filed 06/29/12 Page 2 of 2
Login for Favorites

Mlibrary
Home> Ne'hS > IJ.M Library

statement on the CXphan Works Project

U-M Library statement on the Orphan Works Project
News I September 16th. 2011
Tt-e close and welcome scrutiny of the list of potential orphan worl<s

has revealed a number of errors, some of them serious . Thls tells us
!hat OLl" pilot process is fiawed.
Having leamed from our mistakes-we are, after all, an educational
institution--we have already begun an examination of our procedures
to identify the gaps that allowed volumes !hat are evidently not orphan

wor1<s to be added to the list Oree we create a more robust,
transparent, and fully documented process,

we will proceed with the

worX, because we remain as certain as ever !hat our proposed uses of
orphan worl<s are lawful and important to the future of scholarship and
the libraries !hat support it.
It was always our belief that we would be more likely to succeed with

the cooperation and assistance of authors and publist-ers. This turns
out to be correct Thle widespread dissemination of the list has had the intended effect rights holders have been
identified, which is in fact the projecfs primary goal. And as a result of the design of our process, our mistakes have
not resulted in the exposure of even one page of in-copyright material.

Mlibrary News

Ext;eptwher. odulfwl, . noted.tili$ work Is 5ubjfla!(la CuaM Comm on5 Ml1butmn 3 .0
02012, Rltg&nu, of1t1e

U ni\.er~ltyol'-'Ct!rgliln

H«Jn~9

Details and

,~ptiOfl ' .

A-1170
Case 1:11-cv-06351-HB Document 114-96

Filed 06/29/12 Page 1 of 3

EXHIBIT 96

A-1171
Case 1:11-cv-06351-HB Document 114-96

Filed 06/29/12 Page 2 of 3

Coogle
News from Google

Google Checks Out Library Books
The Libraries of Harvard, Stanford, the University of Michigan, the University of Oxford, and The
New York Public Library Join with Google

to Digitally Scan Ubrary Books end Make Them

Searchable Onfine

MOUNTAIN VIEW, Calif. - Dec ember 14, 2004 - /ls part of its effort to make offline information
searchable online, Google Inc. (NASDAQ : GOOG) today announced that it is working with the
libraries of Harvard , Stanford , the Unrversity of Michigan , and the University of Oxford as well as
Th e New York Public Library to digitally scan books from their collections so that users worldwide

can search them in Goog le.
"Even before we started Google, we d reamed of making the incredible breadth of information that
librarians so lovingly organize searchable online," said Larry Page, Google co-fou nder and
president of Products. "Today we're pleased to announce this prog ram to digitize the collections of
these amazing libraries so that every Google user can search them instantly.
"Our work with libraries furth er enhances the existing Google Print program, which enables users
to find matches within the full text of book.s, while publishers and authors monet ize that
information," Page added . "Google's mission is to organize the world's information, and we're
excited to be work.ing with libraries to help make this mission a reality."
Today's announcement is an expans ion of the Google Print 1M program , which assists publishers in
making books and other offline information searchab le online. Google is now working with libraries
to digitally scan books from their collections, and over time will integrate this content into the
Goog le index, to make it searchable for users worldwide.

"VIle believe passionately that such un iversal access to the INOrld's printed treasures is mission critical for teday's great public university," said Mary Sue Coleman, President of the University of
Michigan .
For publishers and authors , th is expansion of the Google Print program will increase the visibility
of in and out of print books , an d generate book sales via "B uy this Book" links and advertising . For
users, Google's library prog ram will make it possible to search across library collections including

A-1172
Case 1:11-cv-06351-HB Document 114-96

Filed 06/29/12 Page 3 of 3

out of print books and titles that weren 't previously available anywhere but on a library shelf.
Users searching with G0091e will see links in their search results page when there are books
relevant to their query. Click ing on a title delivers a Google Print page where users can brO\NSe the
full text of pub lic domain works and brief excerpts andlor bibl iographic data of copyrighted
material. Ubrary content VoIiIl be displayed in keep ing with copyright law. For more information and
examples, please visit print.google.com/googleprintllibrary.html.

About Google Inc .
Google's innovative search technologies connect millions of people arou nd the world with
information every day. Founded in 1998 by Stanford Ph.D. students Larry Page and Sergey Brin,
Gaagle today is a top web property in all major global markets. Google's targeted advertising
program, which is the largest and fastest growing in the industry, provides businesses of all sizes
with measurable results , while enhancing the overall web experience for users. Google is
headquartered in Silicon Valley with offices throughout North America, Europe, and Asia. For more
information, visit www.goog le.com.

Media Contact:
Nathan Tyler

G0091 Inc .
e

• 1 650-623-4311
[e-mail]

###
Google is

a trademark of Google Inc. All other company and product names may be trademarks of

the respective companies with which they are associated.

A-1173
Case 1:11-cv-06351-HB Document 114-106

Filed 06/29/12 Page 1 of 2

EXHIBIT 105

HATH]

Collections:

My Collections

Digital Library

SeCfci1 1Sedlcil Tip~

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272,002 eerial ttles
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400 ier cU yieoo;
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::',097,701 voiullleo 1-30'/0 afUiJ ) in tile pu lJ ic
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Bro.... se. search. or mak e HathiTrust
coll ecti ons.

Filed 06/29/12 Page 2 of 2

Se ar ch words th at occur within th e items.

• FUll-text Search

Case 1:11-cv-06351-HB Document 114-106

A-1174

A-1175
Case 1:11-cv-06351-HB Document 115

Filed 06/29/12 Page 1 of 35

DISTRICT
UNITED STATES DISTRlCT COURT
SOUTHERN DISTRICT OF NEW YORK
DISTRlCT

x
----------------------------------------------------------------)[

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

:

11
(H~)
Index No. I I Civ. 6351 (HB)

against
- against-

-

HATHITRUST, et aI.,
al.,
Defendants.

x
----------------------------------------------------------------)[

MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFFS’
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

FRANKFURT KURNIT KLEIN & SELZ, P.C.
Edward H. Rosenthal, Esq.
Jeremy S. Goldman, Esq.
Adam Nelson (Law Student)
488 Madison Avenue
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[phone]
erosenthalc~Ms.com
[e-mail]
[e-mail]
goldman(2lWcks.eom
[e-mail]
[e-mail]

Attorneys for Plainttffs
Attorneys/or Plaintiffs

A-1176
Case 1:11-cv-06351-HB Document 115

Filed 06/29/12 Page 24 of 35

producing and distributing these copies cannot be deemed reasonable, even under the most

purposes”);
510 U.S.
favorable light of fair use for non-profit educational purposes"); see also Campbell, 510 U.S. at
(“[Tjhe
584 ("[T]he mere fact that a use is educational and not for profit does not insulate it from a
finding of infringement, any more than the commercial character of a use bars a finding of fair

use”);
ofjoumal
use"); Texaco, 60 F.3d at 922 (systematic photocopying and archiving of journal articles to
“research
sciences.
purpose”
facilitate "research in the sciences ... might well serve a broader public purpose" but does not
.

.

constitute fair use).

While Defendants may argue that their patrons use HathiTrust for the purposes set forth
in the preamble to Section 107 ("for purposes such as criticism, comment, news reporting,
(“for
teaching (including multiple copies for classroom use), scholarship, or research"), it is the
research”),
purpose for which the Defendant libraries digitized and used the Infringed Books that is at issue
here. In other words, fair use must be judged by the conduct of the infringer, not the final user.
Otherwise, any reproduction of educational, informational or artistic material could be justified

broadcaster’s
as benefitting the public. See Infinity, 150 F.3d at 108 (rejecting broadcaster's argument that his
of plaintiff’s programming
unauthorized retransmissions ofplaintifCs progrmmning constituted fair use based on the acts of
the end-users); Byrne v. British Broad. Corp., 132 F. Supp. 2d 229, 234 (S.D.N.Y. 2001) (non
(non-

“enjoys
profit organization BBC "enjoys no special immunity from determinations of copyright
infringement” “question
infringement" as "question under factor one is the purpose and character of the use, not of the
usc,
ofthc
alleged infringer”). Here, Defendants agreed to allow Google to digitize their library collections
infringer").
Defendants
Google
for the purpose of receiving their own digital copies that carry enormous value. They cannot
escape the commercial purpose of that transaction. See A&MRecords, Inc. v. Napster, Inc., 239
A&M Records,
v. Naps/er,
F.3d 1004, 1015 (9th Cir. 2001) (“Commercial use is demonstrated by a showing that repeated
("Commercial

19
19

A-1176.1
Case 1:11-cv-06351-HB Document 116

Filed 06/29/12 Page 1 of 39

Edward H. Ro.enthal
Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[phone]
[e-mail]
jgoldman~flcks.com
[e-mail]
Attorneysfor Plaint~ffs
Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
x
---------------------------------------------------------)(
THE AUTHORS GUILD, INC., et al,
Index No. 11 Civ. 6351 (HB)

Plaintiffs,
- against -

-

-

HATHITRUST, et al.

Defendants.
x
---------------------------------------------------------)(
PLAINTIFFS’ STATEMENT OF UNDISPUTED MATERIAL FACTS
PLAINTIFFS'
Pursuant to Rule 56.1 of the Local Rules of the United States District Court for the
Southern District of New York, Plaintiffs The Authors Guild, Inc. ("Authors Guild"), The
ffic. (“Authors Guild”),
(“ALF”),
(“ASA”),
Authors League Fund, Inc. ("ALF"), The Australian Society of Authors Limited ("ASA"), Union
Des Ecrivaines et des Ecrivains Québécois (''UNEQ''), Authors’ Licensing and Collecting
Quebecois (“UNEQ”), Authors'

(“ALCS”),
Faglitter~r
Society ("ALCS"), Sveriges Forfattarforbund, Norsk Faglitterrer Forfatter- Og
Oversetterforening (“SFF”),
Writers’
(“TWTJC”),
Oversettertorening ("SFF"), The Writers' Union of Canada ("TWUC"), Trond Andreassen
(“Andreassen”),
(“Cummings”),
(“Grundstrom”),
("Andreassen"), Pat Cummings ("Cummings"), Erik Grundstrom ("Grundstrom"), Angelo
Loukakis ("Loukakis"), Roxana Robinson ("Robinson"), Helge Rønning ("Rlonning"), André
(“Loukakis”),
(“Robinson”),
Rlonning (“Rønning”), Andre
Roy (“Roy”), Jack R. Salamanca ("Salamanca"), James Shapiro ("Shapiro"), Daniêle Simpson
(“Salamanca”),
(“Shapiro”), Daniele
("Roy"),
(“Simpson”), '1'.1. Stiles ("Stiles") and Fay Weldon ("Weldon") (collectively, "Plaintiffs"), by
(“Stiles”)
(“Weldon”)
“Plaintiffs”),
("Simpson"), T.J.

A-1176.2
Case 1:11-cv-06351-HB Document 116

Filed 06/29/12 Page 2 of 39

and through their attorneys, Frankfurt Kurnit Klein & Selz, P.C., hereby submit this statement of
material facts as to which Plaintiffs contend there is no genuine issue to be tried, as well as
citations to the admissible evidence in support of each fact. Except where specifically defined in
the chart below, capitalized terms shall have the meanings ascribed to them in the "Definitions"
“Definitions”
set forth in Appendix A to this Statement.

No.

PLAINTIFFS’ UNDISPUTED FACT
PLAINTIFFS'

SUPPORTING EVIDENCE
SUPPORTIKG EvIDENCE

GOOGLE LIBRARY PROJECT ORIGINS
1.

Marybeth Peters, formerly the Register of Copyrights
of the United States, submitted a statement to the
Committee on the Judiciary of the United States House
111th
1st
of Representatives at 111 th Congress, 1st Session on
the
September 10, 2009 which included !be following:

Statement of Marybeth Peters,
The Register of Copyrights,
before the Committee on the
Judiciary, United States House
of Representatives, 111th
Illth
Congress
Congrcss 1st Session,
September 10, 2009,
Competition and Commerce in
Digital Books: The Proposed
Google Book Settlement,
http://www.copyright.gov/docs/
regstatO9loo9.html.
regstat091 009.htm!.

“The
"The Copyright Office has been following the Google
Library Project since 2003 with great interest. We first
learned about it when Google approached the Library
Library’s
of Congress, seeking to scan all of the Library's books.
At that time, we advised the Library on the copyright
issues
issnes relevant to mass scanning, and the Library
offered Google the more limited ability to scan books
that
!bat are in the public domain. An agreement did not
come to fruition because Google could not accept the
terms.”
2.

6:3,43:18WilkinTr.35:20-36:3,43:1825.

3.

Wilkin Tr. 54:8-21;; see also
Courant Tr. 38:14-39:5.

4.

—

2

WilkinTr. 137:12-138:18.
Wilkin Tr.

A-1176.3
Case 1:11-cv-06351-HB Document 116

Filed 06/29/12 Page 3 of 39

No.

PLAINTIFFS’
PLAINTIFFS' UNDISPUTED FACT

SUPPORTING EVIDENCE

5.

Wilkin “heard
Willdn "heard that Harvard publicly asserted that they
didn’t
didn't allow Google to digitize in-copyright works.”
works."

Wilkin
119:12-14.
Willdn Tr. 119: 12-14.

6.

On December 14, 2004, Google issued a press release
“that
announcing "that it was working with the libraries of
Harvard, Stanford, the University of Michigan and the
University of Oxford as well as The New York Public
Library to digitally scan from their collections so that
users worldwide can search them in Google."
Google.”

Wilkin Tr. 33:24-34:16, JW2.
Willdn

7.

James Hilton, who at one time held the position of
UM’s Associate Provost for Academic Information and
UM's
Instructional Technology Affairs, told Wilkin that he
had been warned by Dale Flecker, who at one time held
the position of Associate Director for Planning and
Systems at the Harvard University Library, that UM
had not "done much deep thinking on copyright issues"
“done
issues”
in connection with UM’s decision to allow Google to
UM's
digitize in-copyright works.

Wilkin Tr. 122:7-124:15.

8.

Microsoft funded a mass digitization project at several
fi.mded
university libraries that intended to scan only public
nniversity
domainbooks.
domain books.

Christenson Tr. 24:9-17; Hilile
Hirtle
Tr. 50:24-52: 16; Farley Tr.
50:24-52:16;
11:16-14:14.

GOOGLE BOOK SEARCH PROJECT
9.

Clancy Tr.
ClancyTr. 17:5-11.

V

10.

ClancyTr.20:24-21:5.
ClancyTr. 20:24-21:5.

11.

ClancyTr. 17:12-18:6.
Clancy'l'r.

3
3

A-1176.4
Case 1:11-cv-06351-HB Document 116

No.
12.

Filed 06/29/12 Page 4 of 39

j

PLAINTIFFS’ UNDIsPuTED FACT

~

SUPPORTING EVIDENCE

)JlancyTr. 17:12-18:6.

GOOGLE COOPERATIVE AGREEMENTS
~nswer "l34; UM ROG No.
¶ 34;
3(k); Rosenthal Dccl., Ex. 80
Decl.,
(UM-Google Cooperative
Agreement)..
Agreement)

13.
~

14.

Answer -,r 35; Christenson Tr.
¶
Deci.,
39:19-40:4; Rosenthal Decl.,
Ex. 82 (UC-Google Cooperative
Agreement)..
Agreement)

15.
IS.

Answer -,r 36; Rosenthal Dccl.,
¶
Decl.,
Ex. 85 (UW-Google
Cooperative Agreement).

16.

Answer ¶ 37; Rosenthal Dccl.,
Answer~
(CIC-Google
Ex. 83 (CrC-Google
Cooperative Agreement).

17.

Answer ~ 38; Rosenthal Decl.,
¶
Dccl.,
Ex. 84 (Comell-Google
(Cornell-Google
¶
Cooperative Agreement) at -,r 3;
71:2-6.
Hirtle Tr. 71 :2-6.

4

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No.

Filed 06/29/12 Page 5 of 39

PLAINTIFFS’
PLAINTIFFS' UNDISPUTED FACT

SUPPORTING EVIDENCE

SCOPE OF PROJECT
SCOPE OF r K'..oJ-"-,\...
18.

In 2004, Google announced that it planned to create an
world’s
online database of all the world's books, beginning
with agreements with major universities in the United
States.

Rosenthal Dccl., Ex. 96 (Clancy
Deci.,
Exhibit No. 3).
No.3).

19.

ClancyTr.
Clancy Tr. 54:10-20.

20.

ClancyTr. 54:21-55:1.
Clancy Tr.

21.

WilkinTr. 100:8-13.
Wilkin Tr.

22.

As of December 20,2011, UM had incorporated into
the HDL 4,490,155 digitized volumes.

UMRFA,
UM RFA No. 32.

23.

With the exception of digitizing books to make them
available to people with print disabilities, the
University Librarian of UM was not aware of any
instance prior to entering into the UM-Google
Cooperative Agreement in which UM digitized works
that were still protected by copyright.

Courant Tr. 31::12-25.
31 12-25.

24.

As of December 9,2011, UC had provided Google
with 3,10 5,94 5 printed volumes that were digitized by
3,105,945
Google and are now in the HDL.
I-IDL.

UC RFA No. 26; Farley Tr.
63:14-18.

25.

ChristensonTr.
Christenson Tr. 103:10-11.

26.

UC was prepared to provide up to five million books
for digitization, including works protected by
hy
copyright.

Farley Tr. 90: 13-91 :6.
90:13-91:6.

27.

As of December 9,2011, UW had provided Google
9, 2011,
with 511,432 printed volumes that, upon information
51 1,432
and belief~ were digitized by Google and are now in the
belief,
HathiTrust Digital Library.

UW RFA No. 26.

28.

HirtleTr. 123:25-124:13;
Tr.123:25-124:13;
178:20-179:10.

5
5

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No.

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PLAINTwFS’
PLAlI'iTlFFS' UNDISPUTED FACT

SUPPORTING EVIDENCE

OPERATIONS
Selection/Collection
Selection/Collectiol1
29.

Pursuant to the UM-Google Cooperative Agreement,
UC-Google Cooperative Agreement, UW-Google
Cooperative Agreement, CIC-Google Cooperative
CrC-Googie
Agreement and Cornell-Google Cooperative
Comell-Google
“Google
Agreement (collectively, the "Google Cooperative
Agreements”),
Agreements"), each Defendant cooperates with Google
identi~’
to identify works from its individual collection to be
digitized.

Answer ¶ 50.
~

30.

The books selected for digitization pursuant to the
Google Cooperative Agreements are not limited to
works in the public domain, unpublished works or
deteriorating published works that cannot be replaced,
and include in-print books that are commercially
available and books that are protected by copyright.

Answer ¶ 50.
~

31.

UM’s
It was UM's and MLibrary’s intent to digitize
MLibrary's

64:15-25.
Courant Tr. 64: 15-25.

essentially all of the collections of the library except
for works that were fragile, not of the size that would
fit the digitization process or unable or difficult to be
copied for one reason or another.
32.

Farley Tr. 41:2-19.

33.

Wilkin Tr. 148:9-149:7;
Christenson Tr. 68:6-11; Hirtle
Tr. 153:12-18; Farley Tr. 44:2045:2, 49:5-18; 52:21-53:17.
45:2,49:5-18;

34.

HirtleTr. 153:12-18.

35.

Clancy Tr. 47:16-49:8;
Christenson 68:18-70:15; Hirtle
Tr. 152:16-153:9.
Tr.152:16-153:9.

6
6

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No.

PLAINTIFFS’ UNDISPUTED FACT

Filed 06/29/12 Page 7 of 39

SUPPORTING EVIDENCE

36.

ClancyTr. 49:9-50:21.

37.

Christenson Tr. 76:3-77:12.

38.

HirtleTr. 135:2-16.

39.

Witnesses from UC and Cornell were not aware of any I Christenson 145:20-149: 14;
145:20-149:14;
person at any time analyzing any ofthe four fair use
of the
227:13-229: t4.
Hirtle Tr. 227: 13-229: 14.
§
factors set forth in 17 U.S.C. § 107 with respect to any
particular book that was digitized from their library
collections.

40.

UM/UC
UMlUC ROG No.2;
65:8-65:24.
Christenson Tr. 65:8-65 :24.

41.

ClancyTr.42:19—43:5;
Clancy Tr. 42:19 - 43:5;
Christenson Tr. 67:8-14.

42.

UM/UC/UW
UMlUC/uW ROG No.2;
WilkinTr.
Wilkin Tr. 143:6-145:18; Farley
Tr. 45:10-47:17.
Tr.45:10-47:17.

43.

.

--

- -

Hirtle Tr. 128:12-129:3.

----

SlzipmelltIDelivery
Shz)nnent/Delivery

7

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Filed 06/29/12 Page 8 of 39

No.

PLAINTIFFS’ UNDISPUTED
PLAINTIFFS' UNDIsPuTED FACT

EVIDENCE
SUPPORTING EVIDEl'(CE

44.

Library staff at each of the University prepared print
University’s
copies of works from the University's library
collection, including the Infringed Books, for shipment
Google’s
to one of Go ogle's scanning centers.

UMIUC/UW RFA No. 12.
UMlUC/uW RFA

45.

I

Christenson Tr. 77:19-78:25.

n

46..Google
46. .Google arranged for transportation of print copies of
Universities’
works in the Universities' collection, including the
Infringed Books, from, and back, to the library that
prepared the print copies for shipment.

UMJUC/UW RF A No. 12.
UMlUC/uW RFA

47.

Answer ~ 50.
¶

Pursuant to the Gaagle Cooperative Agreements, the
Google
works selected for digitization are delivered to a
facility that is located either on or off the Defendant's
Defendant’s
campus and that is occupied by Google personnel and
scanning equipment.
Scanning

48.

~Google prepared a digital copy of each Infi-inged Book
Infringed
'based on a print copy of the work obtained from one of
:based
the
“Master
'the Universities (each such copy, a "Master Digital
copy”).
topy").

UM/UC/UW RFA Response
RFA
No. 13.

49.

Each Master Digital Copy created by Google includes
an image component representing photographic
tbproductions of the pages of the Work (“Image File")
("Image File”)
reproductions
dhd a Unicode text component representing text in
rind
machine-readable format ("Text File").
(“Text File”).

UM RFA Response No. 14;
UMRFAResponseNo.14;
Answer ~ 52; Clancy Tr. 64:13¶
16; Christenson Tr. 91:12-23;
Hirtle Tr. 109:10-15.

8
8

A-1176.9
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Filed 06/29/12 Page 9 of 39

No.

PLAINTifFS’ UNDISPUTED FACT
PLAINTIFFS'

SUPPORTING EVIDENCE

50.

1

Courant Tr. 68:14-69:23.

51.

Clancy Tr. 64:17-65:9.
ClancyTr.64:17-65:9.

Digitization Costs

52.

Clancy Tr. 57:20-58:5.

53.

Some libraries have estimated th;ir costs of performing
their
the act of digitization at approximately $100 per
volume.
volnme.

Answer 1 53.
¶

54.

UM estimates it costs somewhere between $35 and

Wilkin Tr. 99:4-8; 102:11.

volume
several hundred dollars per volnme and that an estimate
of $60 per book sounds "a bit low.”
“a
low."

55.

WilkinTr.
Wilkin Tr. 156:3-10; Rosenthal
Decl.,
Dec!., Ex. 92.

9
9

A-1176.10
Case 1:11-cv-06351-HB Document 116

No.

Filed 06/29/12 Page 10 of 39

PLAINTIFFs’
PLAINTIFFS' UNDISPUTED FACT

EvWENCE
SUPPORTING EVIDENCE

56.

WilkinTr. 156:16-157:3.
Tr.156:16-157:3.

57.

Hirtle Tr. 146:7-136:22;
140:16-25.

58.

Farley Tr. 36:21-37:19, 64:3-18.

1
59.

HirtleTr.
Hirtle Tr. 149:21-151:9.

60.

Farley Tr. 63:19-64:1.
:1.

61.

For 2011 the general firnd budget for UM’s libraries
was between $50 and $55 million.

Courant Tr. 25:3-25.

University Copy

62.

Pursuant to the Google Cooperative Agreements, after
digitizing a book from the collection of a Defendant,
Google has provided digital copies of books from a
Defendant’s
Defendant's library collections either to that Defendant
Defendant’s
or, at the Defendant's request, to MLibrary.

Answer ¶31 2, 52.

63.

Google provided one or more digital copies of each of
the Infringed Books to UM.

UM RFA No. 19.

64.

UC/UW RFA No.
70:6-18.

20; Farley Tr.

GOOGLE COMMERCIAL PURPOSES
65.

66.

Courant Tr. 52:3-25.

j

WilkinTr.
Wilkin Tr. 131:2-8.

10

A-1176.11
Case 1:11-cv-06351-HB Document 116

No.

Filed 06/29/12 Page 11 of 39

PLAINTIFFS’ UNDISPUTED FACT
PLAINTIFFS' UNDISPUTED FACT

EVIDENCE
SUPPORTING EVIDENCE

67.
67.

I

68.

69.

Wilkin Tr. 131 :24-132:22.
13 1:24-132:22.

Christenson Tr. 98:3-99: 12.
98:3-99:12.

If a user conducts a search on the website
books.google.com for the phrase “secure cheap
books.google.com for the phrase "secure cheap
advertising,”
advertising," which appears in the text of page 287 in
the book Good Troupers All by Gladys Malvern, the
Plaintiff
copyright in which is owned by Plaiutiff ALF, the
search results page includes a link to the work (without
displaying the content), as well as various
advertisements from which Google will earn revenue if
advertisements from which Googlc will cam revenue if
the user clicks on one of the advertisements.

Clancy Tr. 87: 17 - 89:23;
87:17
Deci. ¶
Rosenthal Dec!. ~ 88, Ex. 86
(6/4/12 Printout of Google
Books Search Results).
—

70.

ClancyTr. 108:11-22.

71.

Clancy Tr. 117:4-20.

72.

ClancyTr. 121:19-122:10.

HATHITRUST
73.

HathiTrust Overview

74.

On October 13, 2008, the thirteen universities
comprising the CIC, led by UM; UC’s libraries, led by
ClC,
UC's
the CDL; and the University of Virginia announced the
University
launch of the FlathiTrust Service and the HathiTrust
HathiTrust
Digital Library (“HDL”), the shared digital repository
("HDL"),
of digital collections of institutions participating in the
participating
HathiTrust Service.

11
11

Answer ¶ 62.
Answer,r

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Filed 06/29/12 Page 12 of 39

No.

PLAINTIFFS' UNDISPUTED FACT
PLAINTInS’

EvifiENCE
SUPPORTING EVIDENCE

75.

Defendants store digital copies of the books that were
provided to them by Google in the HDL.

Answer ¶ 2.
Answer~2.

76.

As of October 5,2011, the HDL contained 9,709,348
5, 2011,
volumes, amounting to 435 terabytes of data.

Answer ¶ 39.
Answer~39.

77.

As of June 25, 2012, the HDL included 10,405,889
total volumes, 5,519,596 book titles, 272,002 serial
titles, 3,642,061,150 pages, 466 terabytes of data, the
equivalent of 123 miles and 8,455 tons of printed
materials. Of the 10,405,889 volumes, 3,097,761
volumes (~ 30%) are considered as being in the public
(.-~
(— 70%)
domain, meaning that 7,308,128 (~70%) of the total)
are protected by copyright.

Rosenthal Deel., Ex. 105.
Decl.,

78.

HathiTrust receives the “overwhelming” majority of its
revenues from participating academic libraries that
“contribute”
"contribute" to HathiTrust.

Courant Tr. 119:5-20.

HathiTrust Revenues
~ Wilkin Tr. 204:10-19;
Wilkin Tr. 204:10-19;
Rosenthal Decl., Ex. 93.

79.

80.

“[T]here are years in which HathiTrust has brought in
more than it spent” to cover “the expectation of future
equipment upgrades” and “to be able to develop new
projects and such.”

81.

Courant Tr. 127:20-129:4.

—

I

WilkinTr. 205:8-206:21;
Rosenthal Deel., Ex. 93.

HathiTrust Architecture
82.

The architecture for storing the HDL and operating the
HathiTrust
I-IathiTrust Service employs two synchronized
farms
instances of server fanns (each including at least two
web servers, a database server and a storage cluster),
with the primary site located at VM's Ann Arbor,
UM’s
Michigan campus where incorporation into the HDL
minor
lU’s
occurs, and a miLTor site located at IV's Indianapolis
campus.

12

Answer ¶ 66.

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No.

PLAINTIFFS'
PLAINTIFFS’ UNDISPUTED FACT

SuPPoRTING
SUPPORTING EVIDENCE

83.

The incorporation of digital works and their associated
metadata into the HDL is performed at MLibrary.

Answer ¶ 64.
Answer' 64.

84.

The digital works and associated metadata incorporated
into the I-IDL are replicated to an active mirror site
HDL
located on IU's Indianapolis campus.
lU’s

Answer ¶ 64.
Answer,

85.

The HathiTrust Service includes routine tape backups
HatbiTrust
of
of’ all data in the HDL, which are stored at a facility on
UM's
UM’s campus and are replicated to create a second
backup stored at a separate location on UM's campus.
UM’s

Answer ¶~f 64, 66.
66.
Answer"

86.

Four "HathiTrust Digital Copies" of each of the
“HathiTrust
Copies”
Infringed Books are maintained in the HDL: (1) the
“Initial
Copy”
"Initial HathiTrust Digital Copy" received from
“Minor
Google, (2) the "Mirror Site HathiTrust Digital Copy,”
Copy,"
“First llackup
Copy,”
(3) the "First Backup Tape Digital Copy," and (4) the
“Second
Tape
Copy.”
"Second Backup Tapc HathiTrust Digital Copy."

UM/HathiTrust/UC/UW ROG
UM/HathiTrust/UCIUW RUG
No. 3.
No.3.

87.

Each Initial HathiTrust Digital Copy received from
Google includes an Image File and Text File.

UM RFA Response No. 14.
UMRFAResponseNo.14.

88.

The Initial HathiTrust Digital Copy is stored on a
computer
server (a) connected to the HathiTrust private computcr
network and the UM campus computer network and (b)
physically located at Michigan Academic Computing
1000
Center, Room 100, 1000 Oakbrook Drive, Ann Arbor,
Michigan.
Mirror
The Min'or Site HathiTrust Digital Copy is stored on a
HathiTrust
computer
server (a) connected to the I-IathiTrust private compnter
network and the IU - Purdue University Indianapolis
Purduc Univcrsity
campus computer network and (b) physically located at
Cb)
Informatics & Communications Technology Complex,
Street,
Room IT 024, 535 West Michigan Stree!, Indianapolis,
Indiana.
The Initial HathiTrust Digital Copy and Mirror Site
HathiTrust Digital Copy are stored on media connected
Web servers.
to World Wide Wcb scrvcrs.
stored
The First Backup HathiTrust Digital Copy is storcd on
a server (a) connected to the UM campus computer
Ca)
network and (b) physically located at Michigan
Academic Computing Center, Room 100, 1000
Uakbrook
Oakbrook Drive, Ann Arbor, Michigan.

FIT/UM RUG
&
HTIUM ROG Nos. 3(h) & (i).

89.

HTIUM ROG Nos. 3(h) & (i).
RUG

—

90.

91.

13

HT/UM
HTIUM ROG No. 3(g).

HT/UM RUG
&
HTIUM ROG Nos. 3(h) & (i).

A-1176.14
Case 1:11-cv-06351-HB Document 116

Filed 06/29/12 Page 14 of 39

No.

PLAINTIFFS’
PLAINTIFFS' UNDISPUTED FACT

SUPPORTING EVIDENCE

92.

HathiTrust
The Second Backup HathiTrust Digital Copy is stored
on a server (a) connected to the UM campus computer
network and (b) physically located at Arbor Lakes Data
1, 4251
Facility, Room 9100, Arbor Lakes Building 1,4251
Plymouth Rd., Ann Arbor, Michigan.
HathiTrust
H atlliTrust Uses

HT/UM ROG Nos. 3(h) & (i).
(1).
HTIUM RaG

93.

The HathiTrust Service includes a search tool that
frill-text
permits users to conduct full-text searches of the works
in the HDL to determine the number of times a
HD L
searched term appears, and the page numbers on which
the searched term appears, in books in the HDL
(including public domain and in-copyright works).

Answer 1]68.
¶ 68.

94.

“reverse engineer”
It is theoretically possible to "reverse engineer" a
search index to display snippets, meaning to display the
words in a book that precede and follow the queried
text.

Wilkin Tr. 234:3-236:13.
234:3-236: 13.

95.

The HathiTrust Service permits certain users to view,
fi~ll
search, print, and download full copies of certain
volumes in the HDL, with the level of access
determined in part by the identity of the user and the
copyright status of the work.

Answer 1] 69.
¶

96.

The "HathiTrust Rights Database" includes
“HathiTrust
Database”
categorizations of copyright status for each work in the
HDL, as determined through processes conducted as
part of the HathiTrust Service or through other
1-lathiTrust
resources.

Answer 1]70.
¶ 70.

97.

A work stored in the HDL may be assigned the
attribute "OPB" (an acronym standing for Out of Print
“OPB”
and Brittle) - in the HathiTrust Rights Database, which
FlathiTrust
indicates that the work has been determined to be out
of print and unusable or no longer in the library's
library’s
collection because it is missing.

Wilkin Tr. 85:6-88:23.
85 :6-88:23.

98.

“OPB”
The "OPB" attribute is typically assigned after
digitization.

Wilkin Tr. 88:7-20.

99.

“OPB”
The "OPB" attribute are made available to UM
authenticated users and users of the UM library to
view, print and download.

Wilkin Tr. 222:2-227:17; JW7
222:2-227: 17;
at 7, No. 2.
No.2.

—

14

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Case 1:11-cv-06351-HB Document 116

No.

Filed 06/29/12 Page 15 of 39

PLAINTIFFS’
PLAINTIFFS' UNDISPUTED FACT

SUPPoRTING EvmENCE
SUPPORTING EVIDENCE

HathiTrust User Access and Security
100. Ninety-three (93) individuals located in Michigan, New HT ROG No. 3(1); Wilkin Tr.
190:21-23, 192:1 1-19.
190:21-23,192:11-19.
York, Minnesota, Wisconsin and California have
“privileged access"
"privileged access” to materials stored in the HDL.
HOL.
101.

Authenticated users with "privileged access” to the
“privileged access"
HDL can view and download any work that is stored in
HOL
the HDL one page at a time.
I-IDL

Wilkin Tr. 192:21-194:9.

102.

Approximately five (5) users and thirty-two students
(32) or faculty with print disabilities may obtain
“privileged access"
"privileged access” to the HDL without authenticating
HOL
onto the system from a particular workstation.

HT ROG No. 3(1); Wilkin Tr.
3W;
193:20-194:6.

103.

Fourteen (14) different individuals located in Michigan
and Indiana have physical access to one or more of the
sewers or backup tapes comprising storing the digital
content in the HDL.

HT ROG No. 3(1).
HTROGNo.

104.

I

Clancy Tr. 94:1-99:20, 104:218.

105.

ChristensonTr. 120:14-24.
Christenson Tr. 120: 14-24.

106.

WilkinTr. 198:13-200:19;
Rosenthal Decl., Exs. 87

J_~
t

15

.88

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Case 1:11-cv-06351-HB Document 116

No.

Filed 06/29/12 Page 16 of 39

PLAINTIFFS’
PLAINTIFFS' UNDISPUTED FACT

SUPPORTING EVIDENCE

107.

Rosenthal Dec!., Ex. 88
Deci.,
1~

“~

108.

WilkinTr. 174:23-178:17.
Wilkin Tr. 174:23-178:17.

109.

Wilkin Tr.174:23-l78:17.
Tr. 174:23-178:17.

BOOK EXAMINATION

110. UM evaluated the physical condition of the Infringed
:Books that came from MLibrary and conducted
searches of the databases it uses to identify the
availability and price of a new bookin response to
Plaintiffs’ discovery requests.

Wilkin Tr. 74:16-75:5; 78:2479:5.

111.

When, in response to Plaintiffs’ discovery requests,
UM and UC performed a search to determine whether
unused replacement copies of the Infringed Books ii'om
from
“fair price,”
their libraries could be obtained at a "fair price," they
reported that new copies of identical versions of many
Infringed Books were advertised for sale for under $20
a copy.

UM/UC RFA No. 5 (admitting
UMfUC RFA No.5
that new copies of identical
versions of many Inti'inged
Infringed
Looks
,Books could be purchased for
under $20),
$20).

1 12.
112.

When, in response to Plaintiffs’ discovery requests,
Plaintiffs'
UW evaluated
UM, UC and 11W evalnated the physical condition of
the Infringed Books, only six were identified as
“damaged”
"damaged" and only twenty-six were identified as
“deteriorating
"deteriorating or at substantial risk of deteriorating in
the near future."
future.”

UM/UC/UW RFA No. 8.

16

A-1176.17
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Filed 06/29/12 Page 17 of 39

No.

PLAINTifFs’
PLAINTIFFS' UNDISPUTED FACT

SUPPORTING EVIDENCE

113.

Works published between 1850 and 1990 were
typically printed with acid content in the paper and that
he considers any such works to be "deteriorating with
“deteriorating
the natural process of decay."
decay.”

Wilkin Tr. 66:8-67:25; see also
Courant Tr. 43:1 1-44:10.
43:11-44:10.

ORPHAN WORKS
ORPHAN WORKS PROJECT
114.

The Orphan Works Project ("OWP") is an initiative to, Answer ¶~J 3, 73, 74.
(“OWP”)
Answer"
identil5’
inter alia, identifY amongst the in-copyright works in
the HDL so-called "orphan works” - in-copyright
“orphan works"
works for which the copyright holder cannot be found.
“[U]nder
"[UJnder the OWP pilot process, OWP staff undertook
a multistep due diligence process to check whether a
work is commercially available for sale and, if it is not,
to attempt to locate and contact the copyright holder. Jf
If
the OWP staff were unsuccessful in identifYing the
identif~’ing
copyright holder, the bibliographic information for the
work would have been listed on the HathiTrust Service
“under
for ninety days.” Furthermore, "under the pilot
days."
process, if no copyright holder emerged during the
ninety days, and if UM owned a physical copy of the
work in its collection, UM, through the HathiTrust
collcction,
Service, planned to make the work available on a
limited basis to UM students, professors, and other
authenticated users and visitors to the libraries at UM’s
UM' s
campuses, to view the work in full, print the work one
page at a time, and download the work one page at a
files.”
time in single-page PDF files."
—

115.

UM decided to engage in the OWP in the months
following, and in light 0[, Judge Chin's rejection of the
of;
Chin’s
(“ASA”)
Amended Settlement Agreement ("ASA") in the
“a
Google Books case because the ASA had provided "a
whereby
mechanism whcreby orphan works could be used
consequences... [a]nd
without negative consequences, .. [aJnd when the
didn’t
settlement didn't go through, that avenue for making
these works useable was blocked off and we asked
!hese
there
ourselves the question, is !here some way we can get
some benefit our of these works for digital uses.”
uses."

Courant Tr. 141 :22-144:20.
141:22-144:20.

116.

Books determined to be orphan works under the OWP
“tens thousands”
will be made available to "tens of thousands" of
people, including currently registered UM students,
faculty, staff and people who walk into the MLibrary
facilities.

Courant Tr. 146:7-20.

17

A-1176.18
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Filed 06/29/12 Page 18 of 39

No.

PLAINTIFFS’
PLAINTIFFS' UNDISPUTED FACT

SUPPORTING EVIDENCE

117.

On May 16,2011, MLibrary announced the launch of
the OWP.

FAC ¶ 73; Answer ¶ 73.
~
Answer~

118.

On June 23, 2011, UW’s intention to participate in the
Junc 23,2011, UW's
OWP became public.

Answer ¶ 36.
Answer~

119.

On August 24,2011, UC announced its intention to
24, 2011,
join the OWP.
OWP.

Answer ¶ 35.
Answer~

120.

24,2011,
On August 24,20 II, Cornell announced its intention to
jointheOwP.
join the OWP.

Answer ¶ 38.
Answer~

121.

A book entitled Good Troupers All: The Story of
Joseph Jefferson by Gladys Malvern was digitized and
HDL
included in the IIDL and was preliminarily identified
as a book that UM planned to make available on a
planncd makc
limited basis contemplated as part of the OWP if the
copyright holder were not identified.

Answer ¶ 13.
Answer~

122.

A book entitled Lost Country by Jack Salamanca was
HDL
digitized and included in the I-IDL and was
preliminarily identified as a book that UM planned to
make available on a limited basis contemplated as part
of the OWP if the copyright holder were not identified.

Answer ¶ 29.
Answer~29.

123.

announced
On September 16, 2011, UM 3llliounced that there
were "number of errors, some of them serious," in the
“number
serious,”
process that had been used to identifY orphan
identify
candidates as part of the Orphan Works Project.

Rosenthal Decl., Ex. 94
(9/16/11
(9116111 UM Library
Announcement); Answer ~ 78;
Answcr ¶
Wilkin Tr. 241:24-242:14.
241 :24-242: 14.

124.

UM suspended work in the OWP.

Courant Tr. 159:8-11.
Conrant

125.

Under the OWP, several books whose authors should
have been easily locatable but were not located were
wcre
wrongly identified as orphan candidates.

Wilkin Tr. 241:24-242:14;
Courant Tr. 159:12-19, 173 :8159: 12-19, 173:823.

126.

Wilkin characterized the "errors" in the OWP process
“errors”
Wilkiu
as "errors of execution of lllanagelnent" - meaning that
“errors
management”
steps
stcps that had been designed were not followed, so
“closer management”
"closer management" is required.

Wilkin Tr. 241:24-242:14.
241 :24-242:14.

UM intends to proceed with identifYing prospective
identifying
orphan works and expects to list candidate orphan
works on a website and plausibly other locations.

Courant Tr. 158:20-25, 161 :6161:610. Answer ¶ 78.
~

-----

...

_-

._.

—

127.

18

A-1176.19
Case 1:11-cv-06351-HB Document 116

No.

Filed 06/29/12 Page 19 of 39

PLAINTIFFS’
PLAINTIFFS' UNDISPUTED FACT

SUPPORTING EVIDENCE

MARKET HARM
128.

Defendants’
Defendants' unlicensed digitization and use of the
Infringed Books has harmed or threatens to harm
Plaintiffs’
Plaintiffs' interests in the Infringed Books in several
ways, including those described below.

In addition to the evidence cited
below, descriptions of the
various harms to the Individual
varions
Plaintiffs are set forth at:
Stiles Decl. ~~ 10-19;
Dec!. ¶fflJ
Andreassen Dec!. ¶~J 6-10;
Decl.
6-10;
Cummings Dec!. ~~ 6-13;
Cununings Decl. ¶~
Grundstrom Deci. ~~ 6-12;
Dec!. ¶IJ
Robinson Decl. ~~ 6-10;
Dec!. fl
Ronning Dec!. ~~ 6-11; Shapiro
Decl. ¶~J
Decl. ~~ 6-10; Simpson Dec!. ¶~
Decl. ~1
Dec!. ¶1J
6-10; Weldon Ded. ¶~J 6-10;
Decl. ~1
and White Dec!. 'J1 7-10, 12-17.
Deci. ¶fflJ 7-10,12-17.

n

Descriptions of the various
harms to the Associational
Plaintiffs are set forth at:
AG Dcc!. fl 27-34; ALF Decl.
Decl. 1~
Dcc!.
¶jJ 5-18; NFF Dec!. " 5-12;
5-18; NFF Deel. ¶~J 5-12;
"
SFF ¶~J 5-12; TWUC Dccl. fi 7SFF 11 5-12; TWUC Dec!. " 7Deel. ¶IJ 5-12.
15; and UNEQ Dec!. ~, 5-12 .
129.

(a)

.-

Loss or potential loss of revenue from sale or
Plaintiffs’
licensing of digital copies of Plaintiffs'
copyrighted works to Defendants for inclusion
in a digital archive for preservation or other
purposes;

AndreassenlCummings/Grundst
Andreassen!Cmnmings/Grundst
romfLoukakislRobinson/Ronnin
romlLoukakislRobinson!Ronnin
g/Roy/SalamancalShapiro/Simp
g/Roy/Salamanca/ShapirofSirnp
son!Stiles/WeldonlAG/ALCS/A
son!Stiles/Weldon!AG/ALCS/A
LF/ASAITWUC
LFfASAfTWUC ROG II No. 5;
No.5;
Stiles Decl. l' 11-12, Exs. B-D;
Dec!. ¶fflJ

StilesTr.
Stiles Tr. 22:25-23:3; 104:1422,105:4-9;
22, 105:4-9; 163:6-9, 166:4-23;
Cummings Tr. 63:25-64:19.
63 :25-64:19.
130.

(b)

Loss or potential loss of revenue from sale or
Plaintiffs’
licensing of digital copies of Plaintiffs'
copyrighted works [or use in connection with
for
non-consumptive research;
non-consUlllptive

AndreassenlCummings/Grundst
Andreassen!Cnmmings/Grundst
romlLoukakis/RobinsonlRonnin
romiLoukakislRobinson!Ronnin
g/Roy/SalamancaJShapiro/Simp
g/Roy/Salamanca/Shapiro/Sirnp
sonlStiles/WeldonIAG/ALCS/A
son!Stiles/Weldon!AG/ALCS/A
LF/ASA/TWUC ROG II No.5;
LF/ASAfTWUC

¶
Stiles Tr. 1 13;
Stiles Tr. 35:15-20; 168:6-19.

19

A-1176.20
Case 1:11-cv-06351-HB Document 116

Filed 06/29/12 Page 20 of 39

No.

PLAINTIFFS’
PLAIl'"TIFFS' UNDISPUTED FACT

SUPPORTING EVIDENCE

131.

(c)
(C)

AndreassenlCummings/Grundst
AndrcassenlCummingsfGrundst
romlLoukakis/RobinsonlRonnin
romfLoukakislRobinsonIRonnin
g/Roy/SalamancalShapiro/Simp
glRoyfSalamancafShapirofSimp
sonlStilesfWeldon/AG/ALCS/A
sonlStilesfWeldonlAGfALCSfA
LF/ASAlTWUC
No.5;
LF/ASAITWUC ROG II No. 5;

Loss or potential loss of revenue from sale or
licensing of digital copies of Plaintiffs’
Plaintiffs'
copyrighted works for use purely in connection
with full-text searching, including disruption of
full-t~xt s~arching,
commercial licenses granted to online
booksellers such as Amazon, whereby authors
(or their publishers) authorize their books to be
indexed and made fully searchable in order to
promote sales.
.

.

.

.

Stiles Decl. 1 14;
¶

Rosenthal Dec!., Ex. 104
Decl.,
(Amazon Search Inside
License);
Stiles Tr. 180:10-182:11,
StilesTr.
184:18-23, 189:14-191:17.
184:18-23,189:14-191:17.

132.

(d)

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;

AndreassenlCummings/Grundst
AndreassenlCummingsfGrundst
romfLoukakis/RobinsonlRonnin
romILoukakislRobinsonlRonnin
g/Roy/SalamancalShapiro/Simp
g/Roy/SalamancafShapirolSimp
sonlStilesfWeldonlAGIALCSIA
sonlStiles/WeldonlAG/ALCS/A
No.5.
LF/ASAlTWUC
LF/ASAITWUC ROG II No. 5.

133.

(e)

Loss or potential loss of revenue from sale or
licensing of digital copies of Plaintiffs’
Plaintiffs'
copyrighted works due to the availability of
such works for tens of thousands of people to
view, print and download as a result of the
accidental or mistaken identification of such
,,
orphan works
works as public domain or "orphan works";

AndreassenlCummings/Grundst
AndreassenlCummingsfGrundst
romILoukakislRobinsonIRonnin
romfLoukakis/RobinsonlRonnin
g/Roy/SalamancafShapirolSimp
g/Roy/SalamancalShapiro/Simp
sonlStilesfWeldonlAGIALCSIA
son/Stiles/WeldonlAG/ALCS/A
LF/ASAJTWUC ROG II No. 5;
LF/ASAlTWUCROGIINo.5;

.

.

&
White Decl." 7-10, Exs. C &
Deel. ¶1J
D; ALF Decl. ¶1J 12-18, Exs. D
0; ALF Dec!. " 12-18, Exs. D
& E; UNEQ Dec!. 1 10, Ex. A;
Dccl. ¶

White Tr. 98:2-18;
StilesTr.
Stiles Tr. 188:1-189:13.

20

A-1176.21
Case 1:11-cv-06351-HB Document 116

Filed 06/29/12 Page 21 of 39

No.

-PLAINTIFFS’
PLAINTIFFS' UNDISPUTED FACT

SUPPoRTING EVIDENCE
SUPPORTING

134.

(1)
(f)

Edelman DecI.,passim;
Decl., passim;

-----

Plaintiffs’
Exposure of Plaintiffs' copyrighted works to
virtually unlimited piracy due to breaches in
security without providing Plaintiffs any
contractual protections or financial
remuneration in exchange for that risk;

Stiles Decl. ~ 16;
Dec!. ¶
Stiles Tr. 130:4-14, 167:1-4;
Curnmings
Cummings Tr. 63:25-64:19;
Cummings Tr. 108: 13-20;
108:13-20;
110:19-11:2; Rønning Tr.
Renning
102:11-18;

AndreassenlCum.mings!Grundst
Andreassen/CummingsfGrunds!
rom/Loukakis/Robinson/Ronnin
romfLoukakis/Robinson/Ronnin
g/Roy/SalamancalShapiro!Simp
gfRoy/SalamancafShapirolSimp
son/Stiles/Weldon
soniStileslWeldon ROG Nos. 6AG!ALCS!ALF/ASA/TWUC
7; AG/ALCS/ALF/ASAlTWUC
RUG Nos. 8-9;
ROG
Andreassen/Cummings/Grundst
Andreassen/CummingsfGrunds!
rom/Loukalcis/Robinson/Ronnin
romfLoukakisfRobinsonlRonnin
g/Roy/SalamancalShapiro!Simp
gfRoy/SalamancafShapirolSimp
son/Stiles!Weldon/AG/ALCS!A
soniStilesIWeldonlAGIALCSIA
LF/ASA/TWUC RFA Nos. 9LF/ASAlTWUC
11;
AndreassenlCummings/Grundst
Andreassen/Cummings/Grunds!
romfLoukakis/RobinsonlRonnin
romfLoukakisfRobinsoniRonnin
g/Roy/Salamanca/Shapiro/Simp
glRoy/Salan1ancafShapiroiSimp
sonlStiles/Weldon/AG/ALCS/A
soniStileslWeldoniAGIA LCSIA
LF/ASA/TWUC RUG No.5.
LF/ASAlTWUC ROG II No. 5.
135.

(g)

Loss or potential loss of control over the
plaintiffs'
reproduction and distribution of plaintiffs’
copyrighted works.

Andreassen!Cummings!Grundst
Andreassen/Cummings/Grundst
romlLoukakis!RobinsonfRonnin
romfLoukakisfRobinsonlRonnin
g/Roy/SalamancafShapirolSimp
g/Roy!Salamanca/Shapiro/Simp
sonlStiles!Weldon
soniStileslWeldon ROG Nos. 6AG/ALCS!ALF/ASAJTWUC
7; AG/ALCS/ALF/ASAlTWUC
RUG Nos. 8-9;
ROG
AndreassenlCummings!Grundst
Andreassen/Cununings/Grundst
ronilLoukalcis!RobinsonfRonnin
romfLoukalGsfRobinsonlRonnin
gfRoy!SalamancalShapiro/Simp
g/Roy/SalamaucafShapiro/Sirnp
sonlStiles/Weldon/AG!ALCS!A
soniStilesIWeldonlAGIALCSIA
LF/ASAITWUC
LF/ASAlTWUC RFA Nos. 911;
Andreassen!Cummings/Grundst
Andrcasscn/Cummings/Grundst
romlLoukakislRobinson/Ronnin
romfLoukakisfRobinsonlRonnin
g/Roy/SalamancalShapiro!Simp
glRoy/SalamancaiShapiro/Sirnp
sonlStiles/WeldonIAG!ALCS!A
soniStileslWeldoniAGIALCS/A
LF/ASA/TWUC ROG
LF/ASAlTWUC RUG II No.5.

21

A-1176.22
.

.

NFF Deci.

.

Case 1:11-cv-06351-HB Document 116

¶~J 7,

10, Ex. A;

Filed 06/29/12 Page 22 of 39

No.

PLAINTIFFS’
PLAINTIFFS' UNDISPUTED FACT

SUPPORTING EVIDENCE

136.

(h)

AndreassenlCumniings/Grundst
Andreassen!Cummings/Grundst
romlLoukakis/RobinsonlRonnin
romILoukakis/Robinson!Ronnin
gfRoy/SalamancalShapiro/Simp
g/Roy/SalamancaiShapirolSimp
son/Stiles/Weldon
son!StileslWeldon ROG Nos. 67; AGIALCS/ALFIASNTWUC
AG/ALCS/ALF/ASAJTWUC
ROGNos.
ROG Nos. 8-9;

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

Andreassen/Cummings/Grundst
Andreassen!Cnmmings/Grnndst
rom/LoukakisfRobinsonlRonnin
romILoukakislRobinsonfRonnin
g/Roy/SalamancalShapiro/Simp
glRoy/SalamancaiShapirolSimp
son!Stiles/Weldon/AG/ALC S/A
son!StileslWeldon!AGIALCSIA
LF/ASAlTWUC
LF/ASA/TWUC RFA Nos. 911;
Andreassen/Cummings/Grundst
Andreassen!Cummings/Grundst
romlLoukakislRobinson/Ronnin
romILoukakislRobinsonfRonnin
g/Roy/Salamanca/Shapiro/Simp
glRoy/Salamanca/ShapirolSimp
son/Stiles!Weldon/AG/ALCS/A
son!StileslWeldon!AGIALCSIA
LF/ASA/TWUC ROG II No. 5;
No.5;
LF/ASAlTWUC
Christenson Tr. 136:25-139:4
(existence of digital copy in
HDL may impact library's
library’s
decision whether to acquire
print copy of book), Rosenthal
Deci., Ex. 103 (Christenson
Deel.,
article discussing cost-savings
by libraries resulting from
HathiTrust);

Cummings Tr. 64:10-19 (lost
library book sales); Rønning Tr.
Ronning
106:4-10.
137.

(i)

Loss or potential loss of revenue from entering
into collective licensing agreements for mass
collcctivc
disruption
digitization of works, including disrnption of
existing programs to digitize library collections

Gervais Decl.,passim;
NFF Decl. ~'l7, 10, Ex. A;
SFF Deel. 1'1'7,10, Ex. A~.
Dec!. ¶1J 7, 10,
A".

COPYRIGHT OWNERSIDP
COPYRIGHT OWNERSifiP
138.

Andreassen owns the copyright in and to the
Andreassen Works.

Andreassen Decl.

¶ 3.
~

139.

Cummings owns the copyright in and to the Cummings
Works.

Cummings Decl.
Deci.
B.

¶ 3, Exs. A &
&
~

140.

Grundstrom owns the copyright in and to the
GrundstrOm
Grundstrom Works.

Grundstrom Deel. ~ 3.
Grnndstrom Dec!. ¶

22

A-1176.23
Case 1:11-cv-06351-HB Document 116

Filed 06/29/12 Page 23 of 39

No.

PLAINTIFFS’
PLAINTIFFS' UNDISPUTED FACT

SUPPORTING EVIDENCE

141.

Loukakis owns the copyright in and to the Loukakis
Works.

Loukakis ROG No. I, Schedule
1,
A.

142.

Robinson owns the copyright in and to the Robinson
Works.

Robinson Deci. '¶f 3, Exs. A &
&
Dec!. 1
B.

143.

Rønning
Ronning
Ronning owns the copyright in and to the Rønning
Works.

Rønning Decl. ¶f 3.
'1
Ronning

144.

Roy owns the copyright in and to the Roy Works.

Roy Deci. '¶f 3.
Decl. 1

145.

Salamanca owns the copyright in and to the Salamanca
Works.

White Dec!. ¶f 5, Exs. A & B.
Deci. '1
&

146.

Shapiro owns the copyright in and to the Shapiro
Works.

Deci. ¶ 3,
Shapiro Decl. 113, Ex. A.

147.

Simpson owns the copyright in and to the Simpson
Works.

Decl. 1
Simpson Dec!. '¶f 3.

148.

Stiles owns the copyright in and to the Stiles Works.

1
Stiles Decl. '¶f 6, Ex. A.

149.

Weldon owns the copyright in and to the Weldon
Works.

Weldon Dec!. ¶f 3. Exs. A & B.
Decl. '1 3,
&

150.
ISO.

AG owns the copyrights in and to the AG Works.
Warks.

AG Dec!. '¶f 26, Ex. A.
Decl. 1

151.
lSI.

ALF owns the copyright in and to the ALF Works.

ALF Decl. ¶4, Exs. A-C.
'1f 4,

152.

ASA owns the copyright in and to the ASA Works.

ASA ROG No. 1, Schedule A.
I,

153.

TWUC owns the copyright in and to the TWUC
Works.

TWUC Decl. 116, Exs. A & B.
¶ 6,

PUBLICATION
154.

of the
Each ofthe Infringed Books is published.

AndreassenlCummings/Grundst
AndreasseuiCummingslGrundst
romlLoukakis/RobinsonlRonnin
romlLoukakisiRobinsouIRonnin
glRoy/SalamancalShapiro/Simp
glRoylSalamancaiShapirolSimp
sonlStiles/WeldonIAG/ALF/AS
souiStilesiWeldoulAG/ALFIAS
A/TWUC ROG No. 1, Ex. A.
AlTWUC
I,

155.

Only published works were digitized in the Google
Library Project. .

UM/UC/UW RFA No. 4;
UM/Uc/uW RF A No.4;

.

46:8;
Clancy Tr. 45:3 -46:8; Hirtle
Tr. 191:7-20.
191 :7-20.
—

COPYING OF INFRINGED BOOKS

156.

Pursuant to one or more ofthe Google Cooperative
of the
Agreements,
Agreemcnts, the Andreassen Works were digitized and
included in the HDL.

23

Answer ¶ 22;
Answer'1f22;
http://www.hathitrust.org/hathif
h!:!I1:JJv.'WW .hathitrust.orgJhathif
iles; UM RFA No. 35.
RFA

A-1176.24
Case 1:11-cv-06351-HB Document 116

Filed 06/29/12 Page 24 of 39

No.

PLAINTIFFS’
PLAINTIFFS' UNDISPUTED FACT

SUPPORTING EvmENCE
EVIDENCE

157.

Pursuant to one or more of the Google Cooperative
Agreements, the Cummings Works were digitized and
HDL.
included in the HOL.

Answer '¶f 23;
I
http://www.hathitrust.org/hathif
hl!Jl:llwww.hathitrust.orgihathif
iles; UM RFA No. 35.
RFA

158.

Pursuant to one or more of the Google Cooperative
Agreements,
Agreement., the Grundstrom Works were digitized and
HDL.
included in the HOL.

Answer '¶f 24;
I
http://www.hathitrust.org/hathif
hl!Jl:llwww.hathitrust.org/hathif
iles; UM RF A No. 35.
RFA

159.

Pursuant to one or more of the Google Cooperative
Agreements, the Loukakis Works were digitized and
HDL.
included in the HOL.

Answer '¶f 25;
I
http://www.hatbitrust.org/hathif
htt[!:llwww.hathitrust.org/hathif
iles; UM RFA No. 35.

160.

Pursuant to one or more of the Google Cooperative
Rorming
Agreements, the Ronning Works were digitized and
included
HDL.
incl uded in the HO L.

Answer '¶f 26;
I
http://www.hathitrust.org/hathif
hl!Jl:llwww .hathitrust.org/hathif
iles; UM RFA No. 35.

161.

Pursuant to one or more of the Google Cooperative
Agreements, the Robinson Works were digitized and
included in the HOL.
HDL.

Answer 11 27;
¶
http://www.hathitrust.org/hathif
hl!Jl :llwww .hathitrust.org/hathif
iles; UM RFA No. 35.

162.

Pursuant to one or more of the Google Cooperative
Agreements, the Roy Works were digitized and
included in the HDL.
BOL.

Answer '¶f 28;
I
http://www.hathitrust.org/hathif
hl!Jl://v.'WW.hathitrust.org/hathif
RFA
iles; UM RF A No. 35.

163.

Pursuant to one or more of the Google Cooperative
Agreements, the Salamanca Works were digitized and
included in the HO L.
HDL.

Answer '¶f 29;
I
hun ://www.hathitrust.org/hathif
hl!Jl:llwww. hathitlUst. orgihathif
iles; UM RFA No. 35.

164. Pursuant to one or more of the Google Cooperative
Agreements, the Shapiro Works were digitized and
HDL.
included in the HOL.

Answer '¶f 30;
I
http://www.hathitrust.org/hathif
httQ:llwww.hathitrust.orgihathif
iles; UM RFA No. 35.

165.

Pursuant to one or more oflhe Google Cooperative
of the
Agreements, the Simpson Works were digitized and
Warks
HDL.
included in the BDL.

Answer '¶f 31;
I
http://www.hathitrust.orR/hathif
httQ:I/v.'WW.hathihust.orgihathif
iles; UM RFA No. 35.

166.

Pursuant to one or more of the Google Cooperative
Agreements, the Stiles Works were digitized and
HDL.
included in the HOL.

Answer '¶f 32;
I
http://www.hathitrust.org/hathif
httQ:i/www.hathitrust.orgihathif
iles; UM RFA No. 35.

167.

of the
Pursuant to one or more ofthe Google Cooperative
Agreements, the Weldon Works were digitized and
HDL.
included in the HOL.

Answer '¶f 33;
I
http://www.hathitrust.org/hathif
htt[!://v.'WW.hathitrust.orgihathif
iles; UM RFA No. 35.

168.

Pursuant to one or more of the Google Cooperative
Agreements, the AG Works were digitized and
included in the HDL.

http://www.hathitrust.org/hathif
htt[!://www.hathitrust.orgihathif
iles; UM RFA No. 35.

---------------

24

--

A-1176.25
Case 1:11-cv-06351-HB Document 116

Filed 06/29/12 Page 25 of 39

No.

PLAINTIFFS' UNDISPUTED FACT
PLAINTIFFS’

EvifiENcE
SUPPORTING EVIDENCE

169.

Pursuant to one or more of the Google Cooperative
Agreements, the ALF Works were digitized and
included in the FIDL.
HDL.

Answer 1]13;
¶ 13;
http://www.hathitrust.org/hathif
ht1Il:llwww.hathitrust.orglhathif
iles; UM RFA No. 35.
RF A

170.

of the
Pursuant to one or more oIthe Google Cooperative
Agreements, the TWUC Works were digitized and
included in the HDL.

http://www.hathitrust.org/hathif
ht1l':llwww.hathitmst.orglhathif
iles; UM RFA No. 35.
RF A

171.

Pursuant to one or more of the Google Cooperative
Agreements, the ASA Works were digitized and
included in the HDL.

http://www.hathitrust.org/hathif
ht1l':llwww.hathitrust.orglhathif
iles; UM RFA No. 35.
RF A

172.

Defendants admit that the Image File and Text File,
which were generated through the digitization process
each
for eaeh Infringed Book and incorporated into the
FIDL,
“implicates
HDL, each "implicates the right of reproduction
§ 1060).”
referenced in 17 U.S.C. § 106(1)."

UM RFA No. 15.
UMRFANo.15.

173.

Plaintiffs never authorized any of the Defendants to
digitize, copy or make any other uses of any of the
Infringed Books.

¶J 9;
¶
Stiles Decl. 1]9; White Decl. 1]
1 1;
11;
AndreassenlCummings/Grundst
Andreassen/Cummings/Grundst
romlLoukakis/RobinsonlRonnin
romlLoukakislRobinson/Ronnin
glRoy/Shapiro/Simpsonl
glRoy/Shapiro/Simpson/
Weldon Decl. ¶ 5;
Decl.1]5;
AG Decl. 1]26; ALF 1]4;
DecI. ¶ 26;
¶ 4;
TWUC~f 6;
TWUC1]6;
UM/UC! UW RFA No.7.
UMlUC/UWRFANo.7.

174.

Of the
Ofthe 116 Infringed Books, 77 are in print and 30 are
available for purchase in digital format.

AndreassenlCummings/Grundst
Andreassen/Cummings/Grundst
romlLoulcakis/RobinsonfRomiin
romlLoukakislRobinsonIRonnin
g/Roy/Salamanca/Shapiro/Simp
g/Roy/SalamancalShapiro/Simp
son/Stiles/WeldonlAG/ALCS/A
son/Stiles/WeldonlAGIALCSI A
LF/ASA/TWUC
LFIASAlTWUC ROG II No. 1;
No.1;
AndreassenlCummings/Grundst
Andreassen/Cummings/Grundst
romlLoukakis/RobinsonlRonnin
romlLoukakislRobinson/Rolmin
g/Roy/SalamancalShapiro/Simp
glRoy/SalamancalShapiro/Simp
sonlStiles/WeldonIAG/ALCS/A
son/Stiles/Wcldon/AGIALCSIA
LF/ASA/TWUC
LF/ASAlTWUC ROG II No.4.

25

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Dated: New York, New York
June 29, 2012

FRANKFURT KURNIT KLEIN & SELZ, P.C.
&
P.C.
By: lsi Jeremy S. Goldman
Is!
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
lOth
New York, New York 10022
Tel. [phone]
Fax: [phone]
[e-mail]
erosenthal(~2fldcs. com
j [e-mail]
go1dman(~&ks.com
Attorneys for PlaintjfJ’s
Plaintiffs

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APPENDIX A
DEFINITIONS
Parties
Associational Plaintiffs
1.

“AG” means Plaintiff The Authors Guild, Inc.

2.

“ALF” means Plaintiff The Authors League Fund, Inc.

3.

“ASA” means Plaintiff The Australian Society of Authors Limited.

4.

“UNEQ” means Plaintiff Union Des Écrivaines et des Écrivains Québécois.

5.

“ALCS” means Plaintiff Authors’ Licensing and Collecting Society.

6.

“SFF” means Plaintiff Sveriges Författarförbund.

7.

“NFF” means Plaintiff Norsk Faglitterær Forfatter- Og Oversetterforening.

8.

“TWUC” means Plaintiff The Writers’ Union of Canada.

9.
“Associational Plaintiffs” means AG, ALF, ASA, UNEQ, ALCS, SFF, NFF and
TWUC, collectively.
Individual Plaintiffs
10.

“Andreassen” means Plaintiff Trond Andreassen.

11.

“Cummings” means Plaintiff Pat Cummings.

12.

“Grundström” means Plaintiff Erik Grundström.

13.

“Loukakis” means Plaintiff Angelo Loukakis.

14.

“Robinson” means Plaintiff Roxana Robinson.

15.

“Rønning” means Plaintiff Helge Rønning.

16.

“Roy” means Plaintiff André Roy.

17.

“Salamanca” means Plaintiff Jack R. Salamanca.

18.

“Shapiro” means Plaintiff James Shapiro.

19.

“Simpson” means Plaintiff Danièle Simpson.

FKKS: 461427.v2 

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20.

“Stiles” means Plaintiff T.J. Stiles.

21.

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“Weldon” means Plaintiff Fay Weldon.

22.
“Individual Plaintiffs” means Andreassen, Cummings, Grundstrom, Loukakis,
Robinson, Ronning, Roy, Salamanca, Shapiro, Simpson, Stiles and Weldon, collectively.
Defendants
23.
“UM” means The Regents of The University of Michigan which, pursuant to a
stipulation between the parties, Plaintiffs have sued herein by naming as a defendant Mary Sue
Coleman in her official capacity as President of UM.
24.
“UC” means the Board of Regents of the University of California which, pursuant
to a stipulation between the parties, Plaintiffs have sued herein by naming as a defendant Mark
G. Rudof in his official capacity as President of UC.
25.
“UW” means The Board of Regents of The University of Wisconsin which,
pursuant to a stipulation between the parties, Plaintiffs have sued herein by naming as a
defendant Kevin Reilly in his official capacity as President of UW.
26.
“IU” means The Trustees of Indiana University which, pursuant to a stipulation
between the parties, Plaintiffs have sued herein by naming as a defendant Michael McRobbie in
his official capacity as President of IU.
27.

“Cornell” means defendant Cornell University.

28.
“HathiTrust” means defendant HathiTrust which, according to Defendants’
Answer (defined below), “is the name of a service provided by UM under agreements with
member institutions including [UM, UC, UW, IU and Cornell] (but only to the extent that
HathiTrust constitutes an entity capable of being sued, which Defendants contend it does not)
(‘HathiTrust Service’).”
29.

“Defendants” means HathiTrust, UM, UC, UW, IU and Cornell, collectively.

30.
“University” or “Universities” means UM, UC and UW, collectively or
individually, as the case may be.
Non-Parties
31.

“Google” means Google Inc.

Pleadings
32.

“FAC” means Plaintiffs’ First Amended Complaint dated October 5, 2011.

33.

“Answer” means Defendants’ Joint Answer and Defenses dated December 2,

2011.

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Declarations
Attorneys
34.
“Rosenthal Declaration” means the Declaration of Edward H. Rosenthal dated
June 29, 2012.
Individual Plaintiffs
35.
“Andreassen Declaration” means the Declaration of Plaintiff Trond Andreassen
dated June 22, 2012.
36.
“Cummings Declaration” means the Declaration of Plaintiff Pat Cummings dated
June 28, 2012.
37.
“Grundström Declaration” means the Declaration of Plaintiff Erik Grundström
dated June 26, 2012.
38.
“Robinson Declaration” means the Declaration of Plaintiff Roxana Robinson
dated June 26, 2012.
39.
“Rønning Declaration” means the Declaration of Plaintiff Helge Rønning dated
June 27, 2012.
40.

“Roy Declaration” means the Declaration of Plaintiff André Roy dated June 27,

41.

“Shapiro Declaration” means the Declaration of James Shapiro dated June 25,

42.

“Simpson Declaration” means the Declaration of Danièle Simpson dated June 25,

43.

“Stiles Declaration” means the Declaration of Plaintiff T.J. Stiles dated June 26,

2012.
2012.
2012.
2012.
44.
25, 2012.

“Weldon Declaration” means the Declaration of Plaintiff Fay Weldon dated June

45.
“White Declaration” means the Declaration of John White, literary agent for
Plaintiff Jack R. Salamanca, dated June 21, 2012.
Associational Plaintiffs
46.

“AG Declaration” means the Declaration of Paul Aiken dated June 29, 2012.

47.

“ALCS Declaration” means the Declaration of Owen Atkinson dated June 27,

2012.

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48.

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“ALF Declaration” means the Declaration of Isabel Howe dated June 26, 2012.

49.
“UNEQ Declaration” means the Declaration of Francis Farley-Chevrier dated
June 26, 2012.
50.

“SFF Declaration” means the Declaration of Louise Hedberg dated June 26, 2012.

51.

“NFF Declaration” means the Declaration of Jan Terje Helmi dated June 27,

52.

“TWUC Declaration” means the Declaration of Kelly Duffin dated June 28, 2012.

2012.

Experts
53.
“Gervais Declaration.” means the Declaration of Professor Daniel Gervais dated
June 29, 2012.
54.
“Edelman Declaration” means the Declaration of Professor Benjamin Edelman
dated June 29, 2012.
Deposition Transcripts
Depositions of Plaintiffs
55.
“Cummings Tr.” means the transcript from the deposition of Pat Cummings dated
May 22, 2012, a copy of which is annexed as Exhibit 1 to the Rosenthal Declaration.
56.
“Rønning Tr.” means the transcript from the deposition of Helge Rønning dated
May 29, 2012, which is annexed as Exhibit 2 to the Rosenthal Declaration.
57.
“Stiles Tr.” means the transcript from the deposition of T.J. Stiles dated May 31,
2012, which is annexed as Exhibit 3 to the Rosenthal Declaration.
58.
“White Tr.” means the transcript from the deposition of John White, literary agent
for Plaintiff J.R. Salamanca, dated June 8, 2012, which is annexed as Exhibit 4 to the Rosenthal
Declaration.
Depositions of Defendants
59.
“Christenson Tr.” means the transcript from the deposition of Heather
Christenson (University of California) dated April 11, 2012, which is annexed as Exhibit 5 to the
Rosenthal Declaration.
60.
Courant Tr.” means the transcript from the deposition of Paul Courant
(HathiTrust/University of Michigan) dated April 24, 2012, which is annexed as Exhibit 6 to the
Rosenthal Declaration.
61.
“Farley Tr.” means the transcript from the deposition of Laine Farley (University
of California) dated April 12, 2012, which is annexed as Exhibit 7 to the Rosenthal Declaration.

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62.
“Hirtle Tr.” means the transcript from the deposition of Peter Hirtle (Cornell
University) dated April 18, 2012, which is annexed as Exhibit 8 to the Rosenthal Declaration.
63.
“Wilkin Tr.” means the transcript from the deposition of John Wilkin
(HathiTrust/University of Michigan) dated April 25, 2012, which is annexed as Exhibit 9 to the
Rosenthal Declaration.
Depositions of Non-Parties
64.
“Clancy Tr.” means the transcript from the deposition of Dan Clancy (Google)
dated June 1, 2012, excerpts of which are annexed as Exhibit 10 to the Rosenthal Declaration.
Written Discovery Responses
Responses from Individual Plaintiffs
65.
“Andreassen ROG” means Objections and Responses of Plaintiff Trond
Andreassen to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents dated January 6, 2012, a copy of which is annexed as Exhibit 11 to the Rosenthal
Declaration.
66.
“Andreassen RFA” means Objections and Responses of Plaintiff Trond
Andreassen to Defendants’ First Set of Requests for Admission dated January 6, 2012, a copy of
which is annexed as Exhibit 12 to the Rosenthal Declaration.
67.
“Andreassen ROG II” means 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 copy of which is annexed as Exhibit 13 to the Rosenthal
Declaration.
68.
“Cummings ROG” means Objections and Responses of Plaintiff Pat Cummings to
Defendants’ First Set of Interrogatories and Requests for the Production of Documents dated
January 6, 2012, a copy of which is annexed as Exhibit 14 to the Rosenthal Declaration.
69.
“Cummings RFA” means Objections and Responses of Plaintiff Pat Cummings to
Defendants’ First Set of Requests for Admission dated January 6, 2012, a copy of which is
annexed as Exhibit 15 to the Rosenthal Declaration.
70.
“Cummings ROG II” means 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 copy of which is annexed as Exhibit 16 to the Rosenthal Declaration.
71.
“Grundstrom ROG” means Objections and Responses of Plaintiff Erik
Grundstrom to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents dated January 13, 2012, a copy of which is annexed as Exhibit 17 to the Rosenthal
Declaration.

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72.
“Grundstrom RFA” means Objections and Responses of Plaintiff Erik
Grundstrom to Defendants’ First Set of Requests for Admission dated January 13, 2012, a copy
of which is annexed as Exhibit 18 to the Rosenthal Declaration.
73.
“Grundstrom ROG II” means Objections and Responses of Plaintiff Erik
Grundstrom to Defendants’ Second Set of Interrogatories and Requests for the Production of
Documents dated April 10, 2012, a copy of which is annexed as Exhibit 19 to the Rosenthal
Declaration.
74.
“Loukakis ROG” means Objections and Responses of Plaintiff Angelo Loukakis
to Defendants’ First Set of Interrogatories and Requests for the Production of Documents dated
January 13, 2012, a copy of which is annexed as Exhibit 20 to the Rosenthal Declaration.
75.
“Loukakis RFA” means Objections and Responses of Plaintiff Angelo Loukakis
to Defendants’ First Set of Requests for Admission dated January 12, 2012, a copy of which is
annexed as Exhibit 21 to the Rosenthal Declaration.
76.
“Loukakis ROG II” means 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 copy of which is annexed as Exhibit 22 to the Rosenthal
Declaration.
77.
“Robinson ROG” means Objections and Responses of Plaintiff Roxana Robinson
to Defendants’ First Set of Interrogatories and Requests for the Production of Documents with
Amended Schedule A dated January 9, 2012, a copy of which is annexed as Exhibit 23 to the
Rosenthal Declaration.
78.
“Robinson RFA” means Objections and Responses of Plaintiff Roxana Robinson
to Defendants’ First Set of Requests for Admission dated January 9, 2012, a copy of which is
annexed as Exhibit 24 to the Rosenthal Declaration.
79.
“Robinson ROG II” means 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 copy of which is annexed as Exhibit 25 to the Rosenthal
Declaration.
80.
“Ronning ROG” means Objections and Responses of Plaintiff Helge Ronning to
Defendants’ First Set of Interrogatories and Requests for the Production of Documents dated
January 12, 2012, a copy of which is annexed as Exhibit 26 to the Rosenthal Declaration.
81.
“Ronning RFA” means Objections and Responses of Plaintiff Helge Ronning to
Defendants’ First Set of Requests for Admission dated January 12, 2012, a copy of which is
annexed as Exhibit 27 to the Rosenthal Declaration.
82.
“Ronning ROG II” means Objections and Responses of Plaintiff Helge Ronning
to Defendants’ Second Set of Interrogatories and Requests for the Production of Documents
dated April 10, 2012, a copy of which is annexed as Exhibit 28 to the Rosenthal Declaration.

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83.
“Roy ROG” means Objections and Responses of Plaintiff Andre Roy to
Defendants’ First Set of Interrogatories and Requests for the Production of Documents dated
January 13, 2012, a copy of which is annexed as Exhibit 29 to the Rosenthal Declaration.
84.
“Roy RFA” means Objections and Responses of Plaintiff Andre Roy to
Defendants’ First Set of Requests for Admission dated January 13, 2012, a copy of which is
annexed as Exhibit 30 to the Rosenthal Declaration.
85.
“Roy ROG II” means Objections and Responses of Plaintiff Andre Roy to
Defendants’ Second Set of Interrogatories and Requests for the Production of Documents dated
April 10, 2012, a copy of which is annexed as Exhibit 31 to the Rosenthal Declaration.
86.
“Salamanca ROG” means Amended Objections and Responses of Plaintiff Jack
R. Salamanca to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents with Second Amended Schedule A dated April 10, 2012, a copy of which is annexed
as Exhibit 32 to the Rosenthal Declaration.
87.
“Salamanca RFA” means Objections and Responses of Plaintiff Jack R.
Salamanca to Defendants’ First Set of Requests for Admission dated January 12, 2012, a copy of
which is annexed as Exhibit 33 to the Rosenthal Declaration.
88.
“Salamanca ROG II” means Objections and Responses of Plaintiff Jack R.
Salamanca to Defendants’ Second Set of Interrogatories and Requests for the Production of
Documents dated April 10, 2012, a copy of which is annexed as Exhibit 34 to the Rosenthal
Declaration.
89.
“Shapiro ROG” means Amended Objections and Responses of Plaintiff James
Shapiro to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents dated March 26, 2012, a copy of which is annexed as Exhibit 35 to the Rosenthal
Declaration.
90.
“Shapiro RFA” means Amended Objections and Responses of Plaintiff James
Shapiro to Defendants’ First Set of Requests for Admission dated April 3, 2012, a copy of which
is annexed as Exhibit 36 to the Rosenthal Declaration.
91.
“Shapiro ROG II” means 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 copy of which is annexed as Exhibit 37 to the Rosenthal Declaration.
92.
“Simpson ROG” means Objections and Responses of Plaintiff Daniele Simpson
to Defendants’ First Set of Interrogatories and Requests for the Production of Documents dated
January 13, 2012, a copy of which is annexed as Exhibit 38 to the Rosenthal Declaration.
93.
“Simpson RFA” means Amended Objections and Responses of Plaintiff Daniele
Simpson to Defendants’ First Set of Requests for Admission dated April 3, 2012, a copy of
which is annexed as Exhibit 39 to the Rosenthal Declaration.

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94.
“Simpson ROG II” means 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 copy of which is annexed as Exhibit 40 to the Rosenthal Declaration.
95.
“Stiles ROG” means Objections and Responses of Plaintiff T.J. Stiles to
Defendants’ First Set of Interrogatories and Requests for the Production of Documents dated
January 6, 2012, a copy of which is annexed as Exhibit 41 to the Rosenthal Declaration.
96.
“Stiles RFA” means Objections and Responses of Plaintiff T.J. Stiles to
Defendants’ First Set of Requests for Admission dated January 6, 2012, a copy of which is
annexed as Exhibit 42 to the Rosenthal Declaration.
97.
“Stiles ROG II” means 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 copy of which is annexed as Exhibit 43 to the Rosenthal Declaration.
98.
“Weldon ROG” means Objections and Responses of Plaintiff Fay Weldon to
Defendants’ First Set of Interrogatories and Requests for the Production of Documents dated
January 12, 2012, a copy of which is annexed as Exhibit 44 to the Rosenthal Declaration.
99.
“Weldon RFA” means Objections and Responses of Plaintiff Fay Weldon to
Defendants’ First Set of Requests for Admission dated January 12, 2012, a copy of which is
annexed as Exhibit 45 to the Rosenthal Declaration.
100. “Weldon ROG II” means 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 copy of which is annexed as Exhibit 46 to the Rosenthal Declaration.
Responses from Associational Plaintiffs
101. “AG ROG” means Amended Objections and Responses of Plaintiff The Authors
Guild to Defendants’ First Set of Interrogatories and Requests for the Production of Documents
dated April 3, 2012, a copy of which is annexed as Exhibit 47 to the Rosenthal Declaration.
102. “AG RFA” means Amended Objections and Responses of Plaintiff The Authors
Guild to Defendants’ First Set of Requests for Admission dated April 3, 2012, a copy of which is
annexed as Exhibit 48 to the Rosenthal Declaration.
103. “AG ROG II” means Objections and Responses of Plaintiff The Authors Guild to
Defendants’ Second Set of Interrogatories and Requests for the Production of Documents dated
April 20, 2012, a copy of which is annexed as Exhibit 49 to the Rosenthal Declaration.
104. “ALCS ROG” means Objections and Responses of Plaintiff The Authors’
Licensing and Collecting Society to Defendants’ First Set of Interrogatories and Requests for the
Production of Documents dated February 4, 2012, a copy of which is annexed as Exhibit 50 to
the Rosenthal Declaration.

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105. “ALCS RFA” means Objections and Responses of Plaintiff The Authors’
Licensing and Collecting Society to Defendants’ First Set of Requests for Admission dated
February 4, 2012, a copy of which is annexed as Exhibit 51 to the Rosenthal Declaration.
106. “ALCS ROG II” means 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 copy of which is annexed as Exhibit 52 to
the Rosenthal Declaration.
107. “ALF ROG” means Objections and Responses of Plaintiff The Authors League
Fund to Defendants’ First Set of Interrogatories and Requests for the Production of Documents
with Amended Schedule A dated January 25, 2012, a copy of which is annexed as Exhibit 53 to
the Rosenthal Declaration.
108. “ALF RFA” means Objections and Responses of Plaintiff The Authors League
Fund to Defendants’ First Set of Requests for Admission dated January 25, 2012, a copy of
which is annexed as Exhibit 54 to the Rosenthal Declaration.
109. “ALF ROG II” means Objections and Responses of Plaintiff The Authors League
Fund to Defendants’ Second Set of Interrogatories and Requests for the Production of
Documents dated April 20, 2012, a copy of which is annexed as Exhibit 55 to the Rosenthal
Declaration.
110. “ASA ROG” means Objections and Responses of Plaintiff The Australian Society
of Authors to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents dated February 10, 2012, a copy of which is annexed as Exhibit 56 to the Rosenthal
Declaration.
111. “ASA RFA” means Objections and Responses of Plaintiff The Australian Society
of Authors to Defendants’ First Set of Requests for Admission dated February 10, 2012, a copy
of which is annexed as Exhibit 57 to the Rosenthal Declaration.
112. “ASA ROG II” means 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 copy of which is annexed as Exhibit 58 to the Rosenthal
Declaration.
113. “SFF ROG” means Objections and Responses of Plaintiff Sveriges
Författarförbund (The Swedish Writers’ Union) to Defendants’ First Set of Interrogatories and
Requests for the Production of Documents dated January 23, 2012, a copy of which is annexed
as Exhibit 59 to the Rosenthal Declaration.
114. “SFF RFA” means Objections and Responses of Plaintiff Sveriges
Författarförbund (The Swedish Writers’ Union) to Defendants’ First Set of Requests for
Admission dated January 23, 2012, a copy of which is annexed as Exhibit 60 to the Rosenthal
Declaration.

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115. “SFF ROG II” means Objections and Responses of Plaintiff Sveriges
Författarförbund (The Swedish Writers’ Union) to Defendants’ Second Set of Interrogatories and
Requests for the Production of Documents dated April 20, 2012, a copy of which is annexed as
Exhibit 61 to the Rosenthal Declaration.
116. “NFF ROG” means Objections and Responses of Plaintiff Norsk Faglitterær
Forfatter- og Oversetterforening (The Norwegian Non-Fiction Writers and Translators
Association) to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents dated January 26, 2012, a copy of which is annexed as Exhibit 62 to the Rosenthal
Declaration.
117. “NFF RFA” means Objections and Responses of Plaintiff Norsk Faglitterær
Forfatter- og Oversetterforening (The Norwegian Non-Fiction Writers and Translators
Association) to Defendants’ First Set of Requests for Admission dated January 26, 2012, a copy
of which is annexed as Exhibit 63 to the Rosenthal Declaration.
118. “NFF ROG II” means Objections and Responses of Plaintiff Norsk Faglitterær
Forfatter- og Oversetterforening (The Norwegian Non-Fiction Writers and Translators
Association) to Defendants’ Second Set of Interrogatories and Requests for the Production of
Documents dated April 20, 2012, a copy of which is annexed as Exhibit 64 to the Rosenthal
Declaration.
119. “TWUC ROG” means Objections and Responses of Plaintiff The Writers’ Union
of Canada to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents dated January 30, 2012, a copy of which is annexed as Exhibit 65 to the Rosenthal
Declaration.
120. “TWUC RFA” means Objections and Responses of Plaintiff The Writers’ Union
of Canada to Defendants’ First Set of Requests for Admission dated January 30, 2012, a copy of
which is annexed as Exhibit 66 to the Rosenthal Declaration.
121. “TWUC ROG II” means 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 copy of which is annexed as Exhibit 67 to the Rosenthal
Declaration.
122. “UNEQ ROG” means Objections and Responses of Plaintiff Union des Écrivaines
et des Écrivains Québécois (Quebec Union of Writers) to Defendants’ First Set of Interrogatories
and Requests for the Production of Documents dated January 26, 2012, a copy of which is
annexed as Exhibit 68 to the Rosenthal Declaration.
123. “UNEQ RFA” means Objections and Responses of Plaintiff Union des Écrivaines
et des Écrivains Québécois (Quebec Union of Writers) to Defendants’ First Set of Requests for
Admission dated January 26, 2012, a copy of which is annexed as Exhibit 69 to the Rosenthal
Declaration.
124. “UNEQ ROG II” means Objections and Responses of Plaintiff Union des
Écrivaines et des Écrivains Québécois (Quebec Union of Writers) to Defendants’ Second Set of

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Interrogatories and Requests for the Production of Documents dated April 20, 2012, a copy of
which is annexed as Exhibit 70 to the Rosenthal Declaration.
Responses from Defendants
125. “HT ROG” means Responses to Plaintiffs’ First Set of Interrogatories to
Defendant HathiTrust dated February 8, 2012, a copy of which is annexed as Exhibit 71 to the
Rosenthal Declaration.
126. “HT ROG II” means Supplemental Responses to Plaintiffs’ First Set of
Interrogatories to Defendant HathiTrust dated April 9, 2012, a copy of which is annexed as
Exhibit 72 to the Rosenthal Declaration.
127. “UC ROG” means Responses to Plaintiffs’ First Set of Interrogatories to
Defendant Mark G. Yudof (University of California) dated February 8, 2012, a copy of which is
annexed as Exhibit 73 to the Rosenthal Declaration.
128. “UC RFA” means Responses to Plaintiffs’ First Requests for Admission to
Defendant Mark G. Yudof (University of California) dated February 8, 2012, a copy of which is
annexed as Exhibit 74 to the Rosenthal Declaration.
129. “UM ROG” means Responses to Plaintiffs’ First Set of Interrogatories to
Defendant Mary Sue Coleman (University of Michigan) dated February 8, 2012, a copy of which
is annexed as Exhibit 75 to the Rosenthal Declaration.
130. “UM ROG II” means Supplemental Responses to Plaintiffs’ First Set of
Interrogatories to Defendant Mary Sue Coleman (University of Michigan) dated April 9, 2012, a
copy of which is annexed as Exhibit 76 to the Rosenthal Declaration.
131. “UM RFA” means Responses to Plaintiffs’ First Requests for Admission to
Defendant Mary Sue Coleman (University of Michigan) dated February 8, 2012, a copy of which
is annexed as Exhibit 77 to the Rosenthal Declaration.
132. “UW ROG” means Responses to Plaintiffs’ First Set of Interrogatories to
Defendant Kevin Reilly (University of Wisconsin) dated February 8, 2012, a copy of which is
annexed as Exhibit 78 to the Rosenthal Declaration.
133. “UW RFA” means Responses to Plaintiffs’ First Requests for Admission to
Defendant Kevin Reilly (University of Wisconsin) dated February 8, 2012, a copy of which is
annexed as Exhibit 79 to the Rosenthal Declaration.

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Infringed Works
134.

“Infringed Works” means all of the works defined below, collectively.

Individual Plaintiffs’ Works
135. “Andreassen Works” means the work or works identified on Schedule A to the
Andreassen ROG.
136. “Cummings Works” means the work or works identified on Schedule A to the
Cummings ROG.
137. “Grundström Works” means the work or works identified on Schedule A to the
Grundström ROG.
138. “Loukakis Works” means the work or works identified on Schedule A to
Loukakis ROG.
139. “Robinson Works” means the work or works identified on Schedule A to the
Robinson ROG.
140. “Rønning Works” means the work or works identified on Schedule A to the
Rønning ROG.
141.

“Roy Works” means the work or works identified on Schedule A to the Roy

ROG.
142. “Salamanca Works” means the work or works identified on Schedule A to
Salamanca ROG.
143. “Shapiro Works” means the work or works identified on Schedule A to the
Shapiro ROG.
144.

“Simpson Works” means the work or works identified on Schedule A to Simpson

145.

“Stiles Works” means the work or works identified on Schedule A to the Stiles

146.

“Weldon Works” means the work or works identified on Schedule A to Weldon

ROG.
ROG.
ROG.

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Associational Plaintiffs’ Works
147.

“AG Works” means the work or works identified on Schedule A to the AG ROG.

148.

“ALF Works” means the work or works identified on Schedule A to the ALF

149.

“ASA Works” means the work or works identified on Schedule A to the ASA

ROG.
ROG.
150. “TWUC Works” means the work or works identified on Schedule A to the
TWUC ROG.

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

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

Case No. 11-cv-6351(HB)

v.
HATHITRUST, et al.,
Defendants.

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

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

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

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

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

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

Explanation of accessible digital books

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

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

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

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

Availability of accessible books in higher education

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

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

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

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

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III.

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

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

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

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

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

Dated: June 28, 2012
________________________________
George Kerscher

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOLTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
THE AUTHORS GUILD, INC., et aI.,

Plaintiffs,

Case No. ll-cv-6351 (HB)

v.
HATHITRUST, et aI.,

Defendant,.
----------------------------------------------------------------X

EXHIBIT A
TO

DECLARATION OF GEORGE KERSCHER
Daniel F. Goldstein (admitted pro hac vice)
Laura Ginsberg Abelson (admitted pro hac vice)
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore Slreel
Suitc 1700
Baltimore, Maryland 21202
Telephone: [phone]
Facsimile: 410-385-0869
dfg@bro\Vngold.com
[e-mail]
Robert J. Bernstein (RE 4230)
THE LAW OFFICE OF ROBERT J. BERNSTEIN
380 Lexinglon Avenue, lih Floor
New York, New York 10168
Telephone: [phone]
Facsimile: 212-551-1001
tj [e-mail]

Peter Jaszi (admitted pro hac Fice)
5402 Surrey Street
Chevy Chase, Maryland 20815
Telephone: [phone]
Facsimile: 301-656-7483
pj [e-mail]

Counsellor National Federation olthe Blind,
Georgina Kleege, Blair Seidlitz, and Courtney Wheeler

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Proress-onal Vita fOI- George Kerscher

6130112

George Kerscher Ph.D.
Last updated May 13,2012

White House Highlights George Kerscher as a
"Champion of Change" for his Dedication to
STEM for People with Disabilities
On May 7,2012, George Kerscher was one offourteen individuals honored
at the White House as Champions of Change for leading the fields of
science, technology, engineering, and math for people with disabilities.
"STEM is vital to America's future in education and employment, so equal
access for people with disabilities is imperative, as they can contribute to
and benefit from STEM," said Kareem Dale, Special Assistant to the
President for Disability Policy. "The leaders we've selected as Champions
of Change are proving that when the playing field is level, people with
disabilities can excel in STEM, develop new products, create scientific
inventions, open successful businesses, and contribute equally to the
economic and educational future of our country."
The Champions of Change program was created as a part of President
Obama's Winning the Future initiative. Each week, a different sector is
highlighted and groups of Champions, ranging from educators to
entrepreneurs to community leaders, are recognized for the work they are
doing to serve and strengthen their communities.
See the video of the event at the White House.

AFB Names Kathleen Mary Huebner, Ph.D. and
George Kerscher, Ph.D. 2012 Migel Medal
Recipients
On December 6,2011 )The American Foundation for the Blind (AFB)
announced the 2012 winners of the Migel Medals, the highest honor in the
blindness field. The 2012 recipients are George Kerscher, Ph.D. and
Kathleen Mary Huebner, Ph.D.
kerscher.montana.comfvita-2012-may.html

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Profess-onal Vita for Gp.mge Kerscher

6/30/1:.!

"k is an honor to present these medals to George and Kathleen for their
outstanding achievements in the blindness and low vision field," said Carl R.
Augusto, AFB president and CEO. "In dedicating their professional lives to
ensuring that people with vision loss can live healthy and independent lives,
the 2012 Migel Medal awardees are truly worthy of this special recognition."
see the
announcement
onAFB's
website

George
Kerscher

Nominated for the Commission on Accessible
Instructional Materials in Postsecondary
Education for Students with Disabilities
In August 201 0, George Kerscher was nominated to serve on the
Commission on Accessible Instructional Materials in Postsecondarv
Education for Students with Disabilities. The Commission will have up to
one year to make recommendations to the U.S. Congress for improving
kerscher .man tana .com fvlta-2012-may. hlml

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Professional Vila for George Kerscher

access to and the distribution of instructional materials in accessible
formats.

George Kerscher Elected President of the
International Digital Publishing Forum (IDPF)
In December 2009, George Kerscher was elected president of the IDPF,
the trade organization that is setting the standards for eBooks and
publications in digital formats. EPUB, is a trio of specifications that has
been adopted in the publishing arena to deliver all types of digital
publications. The challenge in the future will be to incorporate all types of
content and to integrate rich media into the standards, while maintaining
interoperability. Of course, access to digitally published materials must be
fully accessible to persons who are blind and print disabled.

I
I

George Kerscher Elected to the Board of Guide
Dogs for the Blind
In August 2009, George Kerscher was elected to the Board of Directors of
Guide Dogs for the Blind located in San Raphael, California. George with
current guide dog Mikey, and retired guide Nesbit are graduates of Guide
Dogs for the Blind, the premier non-profit organization in the United States
providing guide dogs, training, and graduate services to persons who are
blind.

George Kerscher named as chair for the EPUB
Maintenance Activity
The IDPF membership has approved the EPUB maintenance working
group. George Kerscher will act as chair and Garth Conboy wi II be vice
chair. The area for the activity can be found at: http://www.daisy.org/epub/
The work will begin in August 2009.

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Pruressiur1<l1 Vita for George Kerscher

6/30/12

George Kerscher receives the 2008 Dr. Roland
Wagner Award
On July 10,2008 George Kerscher, PhD received the 2008 Dr. Roland
Wagner Award at the 11th International Conference on Computers Helping
People with Special Needs (ICCHP) In Linz, Austria.
The Wagner award is named for the founder of ICCHP, a pioneer in
information and communications technology for people with disabilities in
Europe. The award was presented to Kerscher for his tireless efforts to
ensure equal access to information by people with print disabilities. Read
the DAISY press release.

George Kerscher receives Dr. Jacob Bolotin
Award from National Federation of the Blind
On July 4,2008 George Kerscher was named among the first recipients for
the Dr. Jacob Bolotin Award which recognizes individuals and organizations
working in the field of blindness that have made outstanding contributions
toward achieving the full and equitable integration of individuals who are
blind into society. The award was made at the 2008 National Federation of
the Blind conference held in Dallas, Texas. More information about the
Jacob Bolotin award Can be found on the NFB Web site.

Awarded a Doctorate from the University of
Montana
On May 12, 2007 at the
graduation ceremony at
the University of
Montana, George
Kerscher was awarded
a Doctorate of Humane
Letters, the highest
honorary degree the
University can bestow.
The initiative was
initiated from within the
Computer Science
Department. The recommendation received the unanimous endorsement of
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the CS Department, the University faculty, and the Board of Regents.
Two photos shown are of Dr. Dennison,
President of University of Montana with
George Kerscher to his right. The other
is of George Kerscher making his
acceptance speech. The recording is
of Dr. Dennison's remarks followed by
George Kerscher's acceptance.
George Kerscher is wearing the
graduation robe, cap and hood
awarded as part of the doctoral
process.

Recording of George Kerscher's
acceptance speech (MP3) Also A text
transcription of the presentation.

Since January 2007, Re-elected to the Board of
the IDPF
George Kerscher, who was one of the founding members of the Open
eBook Forum (OeB), now the International Digital Publishing Forum (IDPF)
was re-elected to the Board.

Since January 2006 serving on the National
Instructional Materials Accessibility Center
(NIMAC) Advisory Committee
George Kerscher was asked to serve on the Advisory Committee for the
NIMAC. The NIMAC has been established as the repository for K-12
publishers to deposit XML files using the DAISY Standard that conform to
the NIMAS guidelines for quality. More information about the NIMAC can be
found at the NIMAC Web site.

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Since September 2005 Chair of the DAISY/NISO
Standards Committee, formally the ANSIINISO
Z39.a6 Advisory Committee
In September 2005, George Kerscher became the chair of the Advisory
Committee to the DAISY/NISO Standard. As his first move as chair, he
initiated a change in policy to open the committee's work to a broader
audience and make the process transparent. A general call for participation
by experts was broadly circulated and companies stepped forward making
their best people available for standards work. The work plans and minutes
will be available from the Z39.86's maintenance Web site.

George Kerscher Receives Catalyst Award
The 2004 HartY Murphy Catalyst Award was presented to George Kerscher
at the CSUN Technology & Persons with Disabilities Conference on March
16, 2004. This biennial award is presented by the Trace Center to honor
those who bring people together and facilitate the efforts of others in the
field of technology and disability. Past award winners are Judy Brewer
(2002) and Harry Murphy (2000).
George Kerscher began working on document access in 1987 and has
been a tireless advocate and leader ever since. He coined the term "print
disabled" to describe people who cannot effectively read print because of a
visual, physical, perceptual, developmental, cognitive, or learning disability,
and believes that in the Information Age access to information is a
fundamental human right. He also believes that properly designed
information systems can make all information accessible to all people, and
has worked consistently and effectively to push evolving technologies in that
direction.
Although his personal accomplishments stand on their own, he is receiving
the award for the quiet work he has done advancing the efforts of others in
this area. Never one to take credit to himself, he has helped foster and
advance the work of many and brings out the best in teams that he is
associated with. He has also spearheaded the creation of, and then quietly
bore a large share of the support for, key groups that we have all come to
rely on in this area.
Find the press release at the Trace Research Center Archives.

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Since May 2003, Secretary General of the DAISY
Consortium
At the General Meeting of the DAISYConsortium, May 12, 2003 in
Amsterdam, George Kerscher was voted to be the Secretary General of the
DAISY Consortium.

Nom inated to serve on the U.S. National File
Format Technical Panel
In the Fall of 2002, George Kerscher was nominated to serve on the
technical panel which was charged with:
Scope of Work: The Technical Panel has been charged with providing the
Secretary of Education with a set of technical specifications to facilitate the
efficient delivery of accessible instructional materials, a time line for the
implementation of the proposed standards, and process for assessing the
success of standards implementation. The Secretary of Education will
publish the proposed standards in the Federal Register for public comment.
. . ... .

- ... -.- .....--

..

~~~~~-

Ingar Beckman Hirschfeldt and George Kerscher
win 2001 Dayton Forman Award for their ground
breaking work on Digital Talking Books
On August 15, 2001, At a gala dinner as part of the International Federation
of Library Associations Section of Libraries for the Blind (IFLA SLB)
conference in WaShington, DC, the CNIB Library for the Blind awarded the
2001 Dr. Dayton M. Forman Memorial Award to Ingar Beckman Hirschfeldt
and George Kerscher. These two individuals, coming togetherfrom two
different organizations on two different continents, have shown outstanding
leadership in the development of the next generation of talking books, called
DAISY (Digital Accessible Information SYstem).
"No single effort in the past 10 years has so radically altered the reading
experience oflhose unable to read print," said Rosemary Kavanagh,
executive director of the CNIB Library for the Blind and chair of IFLA SLB.
"Through the DAISY Consortium, the visionary capabilities of Ms. Beckman
Hirschfeldt combined with the technical and managerial talents of Mr.
Kerscher have resulted in a monumental change in the talking-book
experience."
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For more information about the Dr, Dayton M, Forman Memorial Award
visithttp://www.cnib.org/library/awards/dmfm/dmfm.htm.

1999·2006: International Digital Publishing
Forum (IDPF) was Open EBook Forum (OeBF)
May23, 2000 George Kerscher was unanimously elected as Chairperson
of the Board of Direclors ofOeBF, In Mayof2002, he was reelected to the
Board of Directors and retained as Chairperson of the Board, To learn
more aboulthe IDPF, its Mission, and the organization, please visit
http://www,idptorg/

Interim Board of Directors
December 15, 1999 George Kerscher was elected to the Interim Board of
the OeBF, by the leaders in the emerging Electronic Book Industry, and
charged to establish a formal organization to promote the emerging eBook
industry,

1999 Montana Association For the Blind Member
of the Year Award
Mr, Kerscher received the Keith E, Denton Member of the Year Award, This
most prestigious and rarely given award is made to a member of the
Association for exceptional service to the blind,

1998 US News and World Report Innovator of the
Year
In the December 28, 1998 issue of US News and World Report, George
Kerscher was honored as one of the Innovators of the year, Forfuli detiails
see: http://www.usnews.com/usnews/issue/981228/28kers.htm

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Since January 1998: World Wide Web--Web
Accessibility Initiative, Steering Committee Cochair
George Kerscher was appointed to serve on the Web Accessibility Initiative
(WAI) Steering Counsel as the co-chair. The WAI is working to make the
Internet fully accessible to persons with disabilities. The WAI is a project of
the World Wide Web Consortium (W3C). To learn about the WAlvisil:
http://www.w3.org/wai

Since October 1997: DAISY Consortium Project
Manager
George Kerscher was nominated and elected through a competitive
interview process as Project Manager for the DAISY Consortium.
The DAISY Consortium is the leading organization in the world developing
information systems specifically designed for bli nd and print disabled
persons. DAISY is devoted to developing the next generation of information
technology for their consumers. The goal is to develop the standard for the
"Digital Audio-based Information SYstem" (DAISY) for the world.
As Project Manager George Kerscher coordinates the activities of the
Consortium. His duties include: developing the business plan and a worldwide communication strategy, working with hardware and software
developers, and managing work teams of the Consortium. To learn more
about DAISYvisil: http://www.daisy.ora/

Since 1991: Recording for the Blind & Dyslexic

Since 1995: Senior Officer, Accessible Information
George Kerscher's position with RFB&D provides a consulting resource to
all departments within RFB&D. His additional responsibilities are to work
with initiatives that promote RFB&D's mission for access to educational
and professional materials for all. RFB&D is not a research organization -rather it is a service organization. It is important for RFB&D, through Mr.
Kerscher's work, to facilitate development of emerging information
technologies for persons with print disabilities. To learn more about RFB&D
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George Kerscher

visit: http://www.rfbd.org/

1991 to 1995: Research and Development Director
Primary activity focused on E-Text, the new form of accessible book
delivery, provided by RFB&D.
In 1992 Mr. Kerscher completed a research project for the National Science
Foundation that specifies computer file language standards for electronic
books for persons with disabilities. The difficulty in this arena is
mathematical and scientific information representation. In one file standard
braille, large print and electronic access must be specified.
Another objective of the R&D division is the development of software that
makes electronic access to information easy and efficient. Soft copy
technology offers the possibility of equal access by print disabled people
side-by- side with the sighted community. This phase of R&D focuses on
the delivery of that information to the print disabled community.

1992 to 1997: International Committee for
Accessible Document Design (ICADD)
1996: George Kerscher was elected ICADD co-chair, to provide
documents for people with print disabilities. He continued until its
dissolution in 1997. Members of ICADD worked with early versions of
HTML and other SGML specifications to ensure accessibility. Many of the
members of ICADD were instrumental in forming the WAI, which carries on
many of the activities that ICADD initiated.
1994 to 1995 Chair of the ICADD Technical Committee, which developed
techniques to make documents accessible. Included in this work was
access to mathematical and scientific information. The committee's work
was primarily focused on the use of SGML for developing these techniques.
They were incorporated in ISO 12083, Electronic Manuscript Preparation
and Markup, and were in HTML 2.0.
1992 to 1994: Mr. Kerscher was the elected ICADD chairperson.

1994 Recipient of the American Foundation for
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the Blind's of "Equality of Access &
Opportunity" award.
Mr. Kerscher received this award for his contributions to the developments
of electronic access to information for persons who are blind or visually
impaired.

1994 Recipient of Frank Smith Award
This award was for Outstanding Contribution to the Blind and Visually
Impaired of Idaho - Montana - Wyoming by the Association for Education
and Rehabilitation of the Blind & Visually Impaired (Northern Rockies
Chapter).
._ . . ._ - - , - - - - - - - - - - -

1991 Texas Braille Commission Technical
Representative
The Texas Braille Commission requested Mr. Kerscher's service as
technical representative to this commission. The purpose of the
commission is to advise on the implementation of the Texas Braille Bill. The
bill requires publishers to provide files to the state for production of braille
for school children. The wider scope of the commission is to look at other
aspects of education of the blind in Texas.
The Texas Braille Commission adopted the standards developed by
ICADD, as a requirement for publishers. Since 1996 publishers were
required to submit computer files that comply with the standards developed
by ICADD, At present more than 18 states have adopted legislation similar
to what was pioneered in Texas.

1988 to 1991: Computerized Books for the Blind
and Print disabled
Mr. Kerscher was the founder and developer of Computerized Books for the
Blind and Print disabled (CBFB). He developed the concept of
computerized books for persons with print disabilities. In this formative time
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the concept and support was developed. He demonstrated to publishers
and consumers the effectiveness of electronic books for braille production
and for direct access via adapted computers.

1988-1989, coined the term "print disabled"
George Kerscher coined the term "print disabled" to describe persons who
could not access print. The definition is as follows:

print disabled, noun. When used as an adjective, the word should be
hyphenated, e.g. print-disabled person.
A penson who cannot effectively read print because of a visual, physical,
perceptual, developmental, cognitive, or learning disability.

1985 to 1989: University of Montana
Post graduate studies in Computer Science.

1978 to 1985: Public School Teacher
Darby, Montana High School Chairperson English Department.
Stevensville, Montana classroom teacher and manager of computer lab.

1975 to 1977: Special Education Teacher
Buffalo Narrows School District, Buffalo Narrows, Saskatchewan.

1974: Northeastern Illinois UniverSity
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Completed B.A. in English Education.

Selected Papers
The Soundproof Book: exploration of rights conflict and access to
commercial e-books for people with disabilities.
Kerscher, George, and Jim FruchtellTIan. First Monday, v. 7, June 2002.
See htlp:llfirslmonday.org/issues/issue7 _6/kerscher/index.html
"Implications of Digital Talking Books and Beyond", George Kerscher.
National Federation of the Blind presentation 1999. See
htlp:llwww.nfb.org/hnages/nfb/Publications/bm/bmOO/bm0001/bm000114.htm
"Beyond Gutenberg", Janina Sajka and George Kerscher, 2000, American
Foundation for the Blind.
See www.afb.org/Section.asp?SectionID=4&TopiclD=
222&DocumenlID=1224
more ..
see The DAISY Consortium Web site atwww.daisy.org

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

Index No. 11 Civ.6351 (HB)

HATIIITRUST, et a!.,
Defendants.

----------------------------------------------------------------X
DECl,ARAnON OF BENJAMIN EDELMAN
L Benjamin Edelman, hereby declare as follows:

Introduction and Qualifications
I.

I am an assistant professor at Harvard Business School. My research focuses on

the design of electronic marketplaces, including Internet advertising, search engines, privacy,
and information security. I hold a Ph.D. in Economics from Harvard University, a J.D. from
Harvard Law School, an A.M. in statistics from Harvard University, and an A.B. in economics
from Harvard College. Further information concerning my background and qualifications is
provided in my curriculum vitae, which is attached hereto as Exhibit A.
2.

My experience includes more than 15 years as a computer programmer, during

which time I developed software for my own use, as well as [or end-user computers, local
networks, and web servers. I also administered servers lor myself and others. My technical
experience includes efforts to vcrifY the security of other programmers' code, including
uncovering shortfalls in their security systems. 1 have studied and written about issues of
infonnation security, accidental information revelation, and infonnation distributed more broadly
than online services anticipated. For example, I have uncovered multiple privacy flaws in

A-1206

connection with services provided by Google, Inc. ("Google"), including improper data
collection by Google Toolbar as well as improper data distribution by Google JotSpot. I also
found and demonstrated to a court's satisfaction that an early online video service, iCraveTV,
had failed to secure video contents in the way that it had previously represented to that court.
3.

My academic publications explore a variety of aspects of online business,

including multiple articles considering the difficulty oflimiting access to and use of information
systems. A full list of my publications is provided in my curriculum vitae (Exhibit A). Among
the publications relevant to questions at issue in this matter are the following articles:

Shortcomings and Challenges in the Restriction of Internet Retransmissions of Over-the-air
Television Content to Canadian Internet Users, a submission to Industry Canada in which I
evaluated the difficulty of imposing certain access restrictions when distributing video material
over the Internet and Securing Online Advertising: Rustlers and Sheriffs in the New Wild West;
in which I presented the challenges of designing online advertising markets to satisfy the
requirements of advertisers, online publishers, and advertising platforms while unauthorized
activities such as advertising fraud are taking place. In numerous articles, I have described all
manner of online miscreants using information systems in ways their providers did not intend,
did not anticipate, sought to prevent, and/or claimed to seek to prevent.
4.

My teaching assignment currently consists of a Harvard Business School elective

course called The Online Hconomy, which analyzes strategies for all manner of online
businesses. Among other topics, this course addresses issues of information security.
5.

I have testified as an expert witness in federal and state courts including in the

U.S. District Courts for Michigan and Pennsylvania and in Utah State Court. I also served as an
expert for the plaintiffs in the so-called "Google Books" case that also is pending in this District.

A uthors Guild v. Google, Inc., 05 Civ. 8136 (DC). That case presents many of the same facts

2

A-1207

and concerns as are raised by this case. A listing of the other cases in which J have testified as an
expert at trial or by deposition during the past four years is attached as Exhibit B. I also have
testified before committees of the United States House of Representative and United States
Senate.
6.

I am being compensated for my work in this matter at the rate 01'$450 per hour.

Scope of Retention
7.

My understanding is that the Plaintiffs in this case have commenced a lawsuit

against certain universities as well as the HathiTrust (collectively, the "Defendants") alleging
that these Defendants have collaborated with Google to digitally scan more than ten million
printed books from university libraries, including millions of books that still are protected by
copyright (the "Google Library Project"). My further understanding is that Google has retained
a digital copy of each of these books, and that Defendants have received their own digital copies
of the printed books they provided to Google, which they then copied and incorporated into the
HathiTrust Digital Library C'HDL"), which comprises multiple server farms and backup tapes.
As described below, Defendants have used, or threatened to use, these digitized works in a
number of ways.
8.

In this report, [ address and opine on risks of a security breach exposing widely

online the contents of in-copyright books that have been digitized as part of the Google Library
Project. I conclude that Defendants' storage and use of the digital book copies creates a
significant security risk which threatens to cause a substantially adverse impact on the market for
the books.
9.

If Defendants' conduct is found to be a fair use and Defendants are permitted to

continue storing and using digital copies of copyrighted works in their shared digital repository,
there will be serious risks of digital piracy, notwithstanding the access limitations and security

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controls Defendants have established. The risks will increase substantially if a precedent set in
this case that would pennit persons or entities with weaker security controls to provide even
limited access to digital versions of copyrighted works.
10.

In preparing this report, I have reviewed the First Amended Complaint filed by

Plaintiffs, the Answer to the First Amended Complaint filed by Defendants, and the motion
papers filed by both sides in connection with Plaintiffs' motion for partial judgment on the
pleadings. In addition, I have reviewed the sources described in this declaration as well as the
additional materials listed on Exhibit C.

Piracy of Books is Already a Real, Not Hypotbetical Problem
11.

The electronic of digital copies of books, without authorization from publishers or

rights-holders, is already occurring. For example, consider a user seeking a copy of Calico Joe,
by John Grisham, which is the number one bestseller hardcover fiction book according to the
New York Times bestseller list dated July 1, 20 12. Such a user might run a Google search for
"calico joe mobi" (without quotes), using the word "mobi" to indicate interest in a ".mobi" book
(a popular electronic book file fonnat). Each and everyone ofthe first ten links found from that
Google search offer or purport to offer copies of Calico Jue. 1 checked each of these ten links
and found that eight continned that the book was available and offered a download link or
download instructions. Of the ten links, not one pointed to a site that charged for access to the
book. Given that Calico Joe is a top-selling in-copyright commercial publication one can be
virtually certain that this offering of free electronic copies is being made without permission
from the copyright holder or his publisher.
12.

Sites offering pirated books fall into several categories. Some sites charge for

pirated book copies, though they do not share the resulting revenues with those who created the
books. Other sites distribute pirated book copies for free. Among sites offering free book

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copies, some offer direct web-based downloads, providing pirated book copies when a user
simply clicks to request a copy. Other sites offer links to Bit torrent ".torrent" files that direct a
user's computer to other computers from which a desired file may be copied.
13.

A site variously known as library.nu, ebooksclub.org and gigapedia.com

(collectively referred to below as "Iibrary.nu") has facilitated particularly widespread
unauthorized copying of books. According to a legal complaint from publishers, library.nu
provided access to 400,000 electronic books. While library.nu was shut down pursuant to court
order, the actions of library.nu continue to hann the market for books. In a presentation entitled

Media Piracy in Emerging Cultures, Joe Karaganis, whose work at Columbia University focuses
on the relationship between digital convergence and cultural production, and has recently
included research on broadband adoption, data policy, and media piracy, explained the
phenomenon of"shadow libraries" like library.nu as follows:
As cheap digital technologies displace paper, we're seeing the emergence of
something new: Massive digital copying, and in particular. the building, sharing
and curation oflarge-scale digital archives among students, researchers and
bibliophiles .... with students in the lead. And they're just not waiting for the
resolution of the larger legal questions around these issues. Not the orphan works
issue, not the digital library lending model issue, the academic licensing issue, the
Googlc Books settlement issue. They're just doing it.
Joe Karaganis, Media Piracy in Emerging Cultures, audio and presentation available at
http://\I,rww.law.berkclcy.eduIl173I.htm(AprilI3, 2012).
14.

In my experience as a student and professor, I have personally observed first-hand

the emergence and existence of such shadow libraries containing "free" digital copies of
textbooks and other works, even atler the demise of library.nu. Once electronic books have been
placed into widespread circulation, such as what happened with library.nu, it is very difficult to
prevent those files from continuing to circulate among anyone interested.

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The Digital Books Stored and Used by Defendants are Exposed to Numerous Risks
15 .

IfJ)efendants, Google or other providers ("providers") scan books, the resulting

digital book copies could enter widespread public circulation via any of several channels.
16.

First, pirates could extract book copies through defects in the security of a

provider's systems. Once books are scanned, the resulting digital files are stored on a server or,
more often, multiple servers. Based on the documents I have reviewed, the HDL employs r"vo
synchronized server farms, including a primary site in Ann Arbor and a mirror site in
Indianapolis, as well as two separately-located sets of backup tapes, all of which are connected to
a campus netv.'ork (which presumably is connected to the Internet). Defects in the physical or
virtual access controls of any such server or access point could allow pirates to gain access to
digital book copies. Defects could also arise through l1aws in the operating system, database
server, web server, or other software run on a provider ' s servers; such flaws have been
widespread in even the most popular server soflware. Moreover, defects could also arise through
the provider's custom software, which is likely to be less secure because custom software usually
receives a lesser level of scrutiny, testing, and verification than software that is distributed and
used more broadly. J understand that the HDL server farms include web and database servers
connected to the Internet, posing additional risks.

17.

Second, pirates could extract books via errors in the security configuration of a

provider's systems. If even one of a provider's servers lacks a required update or other security
feature, pirates could use that server to obtain the book copies.

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18.

Third, a rogue employee could intentionally redistribute book copies. Rogue

employees gain and exploit privileged access to data despite organizations' efforts to screen and
supervise key staff. Consider the classified U.S. State Department material distributed by
Wikileaks in 20 I 0 - information obtained via a rogue employee. A rogue employee with access
to book copies could intentionally make those copies available to the public. HathiTrust's
Response to Plaintiffs' First Set ofInterrogatories confirms that numerous employees enjoy
authorized access to HDL book copies. Specifically, HathiTrust Response No. 2(1) identifies six
employees with physical access to the server farm in Ann Arbor, three employees with physical
access to the server farm in Indianapolis, five employees with physical acccss (and six
employees with virtual access) to the two sets of backup tapes in Ann Arbor and ninety-three
employees, students and faculty with virtual access to the copyrighted digital files stored on the
primary and mirror HathiTrust servers. Any of these individuals could intentionally download
and redistribute book copies.

19.

Fourth, pirates could extract books by impersonating provider staff to access

provider systems, including impersonating any of the twenty authorized persons noted in
HathiTrust interrogatory response 2.1. Suppose an attacker can obtain the username and
password of a person with full access to a provider's book copies. The attacker can log in with
that password to access and copy the provider's book copies. Similar attacks are frequent: For
example Amazon Zappos, I Gawker,2 and Microsoft Hotmail 3 suffered this type or attack in

I

Dominic Rushe. "Zappos Database Hit by Cyberattack." The Guardian. January 16, 2012.

2 Zachary Seward and Albert Sun. "The Top 50 Gawker Media Passwords." Wall Street
Journal - Digits. December 13, 20 I o.
Bogdan Calin. "Statistics from 10,000 Leaked Hotmail Passwords." Acunetix. October 6,
2009. http://www.acunetix.com/blog!news!statistics-from-I OOOO-leakcd-hotmail-passwords! .

3

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4

2009·20 II. Even the United Nations has suffered a breach of a similar nature. If a single staff
person at a single book provider used the same password for a hacked site and for access to book
copies, then a hacker could use that password to access book copies, copy book copies La the
hacker' s own systems, and redistribute book copies further from there.

20 .

Fifth, any error made by any employer could create a security breach allowing

hackers to access book copies and subsequently redistribute book copies further.

21.

Sixth, if providers allow privileged access to copyrighted book content, it is likely

that some users will attempt to exceed the intended scope of authorization to access and copy
book contents en masse. I have not been fully informed of all the ways that Defendants intend to
use the book contents data they receive from Google, nor have I been informed how they intend
to secure that data. Rut the information I have reviewed indicates that Defendants' actions

present a ri sk of book piracy. My understanding is that Defendants intended to display digital
copies of entire books that they considered to be "Orphan Works" (i.e. , works whose copyright
4 Chloe Albanesius. "Team Poison Hacks UN, Leaks Usemames, Passwords." PC Magazine.
November 30, 20 II.

A-1213

owner could not easily be found), but suspended that program in the face of this lawsuit. J also
understand that Defendants make digital copies of certain works avai lable as replacements for
physical books in their collections designated as damaged or deteriorating, as well as under
specific conditions to visually-disabled students. As noted above in Paragraph 18, at least
ninety-three people located throughout the country are granted "privileged" access to view,
download and print all the books in the HDL. See Wilkin Tr. 192: 11-194: 13 (testifying that
users authenticated with "privileged" access can view, download and print any work in the
HDL).
22.

Even if Defendants attempt to implement security controls and other limitations

on users' ability to download book copies, experience suggests that users will exceed those
limitations.

23.

Tunderstand that Defendants are also using the massive digital corpus to allow

certain users to conduct so-called "non-consumptive research," including analyzing word and
phrase usage and patterns in book text. From the perspective of a researcher seeking to perfonn
such analysis, it is natural to begin by copying digital book copies onto a computer system the
researcher controls, allowing the researcher to run flexible and high-speed searches of those book
copies using the researcher 's preferred tools. (Tn contrast, if the researcher had to run analyses
on a server controlled by the library, the researcher would ordinarily be able to use only those
tools the library provides, and the speed of the researcher's analysis might be constrained by

9

A-1214

server capacity and availability.) Crucially, once a researcher copies the data onto his own
system, the library's prior security efforts (whatever they might be) become largely irrelevant. A
researcher might even store digital book copies on a laptop or USB drive, which are particularly
susceptible to loss and theft. When book copies are processed into text using optical character
recognition, the resulting files can be quite small- making it feasible to store tens of thousands
of book copies on an ordinary laptop or USB drive.
24.

A striking example of an authorized user exceeding the intended level of access to

download mass quantities oflibrary materials involves the case of Aaron Swartz, an internet
activist and co-founder of Demand Progress, a political action group that has, among other
things, supported Wikileaks. In July 2011 Swartz was indicted after, according to the
indictment breaking into a restricted area at MIT and entering a computer wiring closet,
supplying false information to bypass security measures and downloading over four million
articles and other copyrighted documents. s

25.

Seventh, when books are scanned by a smaller and less sophisticated provider,

there is a particularly acute risk of book contents being accessed and redistributed. For one, less
sophisticated organizations have a reduced capability to design. install, and maintain suitable
web site, database, and related security systems as well as anti-reconstruction systems to secure
books. Furthermore, less sophisticated organizations have a lesser ability to screen key staffto
prevent data loss through rogue employees, and a lesser ability to configure security systems to
exclude hackers. Thus, if De[endants' conduct is found to be legal, and ifother companies and
organizations follow Defendants' lead in scanning books. the risk that book contents will be
accessed and redistributed becomes even greater.

5

United States a/America v. Aaron Swartz. Indictment. July 14, 2011.

10

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26.

As set out in the section of this report captioned "A Single Breach Could Cause

Devastating Harm," one instance of book copying can have large effects. For example, if
numerous companies and organizations scan books, attackers can focus their efforts on
whichever installs the weakest security. Similarly, attackers can take advantage of even a brief
period when a single book provider is insecure (for example, through failure to properly update a
server). Once attackers obtain book copies, they can then redistribute the copies as desired. If
many providers begin scanning and storing digital book copies, the affected books are only as
secure as the least secure provider - so the diligent efforts of some providers would be
undermined by lax security of others.
27.

Some rightsholders may be willing to accept these risks in order to obtain the

benefits of online distribution of their works. Other rightsholders may be willing to accept these
risks only if they are appropriately compensated for the risk of piracy, for example if they
receive contractual guarantees as to the steps to be taken to mitigate that risk, or if they receive
appropriate compensation if piracy occurs. Iflarge-scale book scanning requires permission
from rightsholders, rightsholders will be able to express these preferences and obtain
corresponding protections for their works. Conversely, if such scanning is deemed permissible
without permission from rightsholders, then rightsholders will have little or no means to reduce
risks they consider gravely important.
Factors Unique to Academic Institutions Raise the Risk
28.

Structural factors unique to the academic setting also increase the diftlculty of

libraries properly securing book contents. University libraries typically serve myriad users
including students, visitors, and others with limited long-term connection to the library -limiting
a library'S ability to establish accountability. Moreover, libraries typically specialize in making
information available rather than in restricting how information may be used.

11

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29.

While some libraries offer t:lectronic resources that are subject to restrictions on

use, these restrictions are typically implemented by keeping the information on the information
provider' s servers so that the information provider, not the library, can monitor usage and
attempt to assure compliance. For example, when libraries license journals and articles and other
documents from the JSTOR digital archive, they generally do not receive full copies of the
articles to store on library servers. Instead, libraries receive secure access to JSTOR servers,
allowing library patrons to access individual documents on JSTOR without ever receiving the
full corpus of all articles JSTOR holds. Access to documents held by Lexis-Nexis and Westlaw

30.

From my time on university campuses, both as a student and as a faculty member,

I am familiar with the views held by many students and some faculty with respect to copyright
law. Many such users view it as permissible to make copies of all manner of copyrighted
content. Often, receiving materials in digital form seems to embolden users : I know many
people who would never steal an item from a retail store and who hesitate to photocopy a book
(whether because such photocopying is too time-consuming, or because it "feels wrong" to
them), but who do not hesitate to make copies of copyrighted works using tools such as
BitTorrent or, before they were shut down, Napster and Kazaa. The prevalence of these views
on university campuses makes it particularly likely that copying digital books, from university
libraries or otherwise, would be seen as ethically acceptable.

12

A-1217

31.

A further risk of book piracy from or via university libraries comes from the

culture of "pranks" enjoyed by many software and engineering students. For example, the MIT
Hack Gallery presents hundreds of hacks including public displays of the Apple logo, thc logo of
the Boston Red Sox, and the logos of various movies.

6

6

http://hacks.mit.edu/.

7 Cooperative Agreement between Google Inc. and Regents of the University of Michigan,
sections 2.3.1 and 2.7 .
8 Cooperative Agreement between Google Inc. and Regents of the University of Michigan,
sections 4.4.1-2.

For example, the Google NDA presented at http://valleywag.comI230407/this-nda-neverexisted offers greater protection including greater restrictions on the circumstances in which

9

13

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Google Itself Is Not Immune to Design Flaws and Security Breaches
34.

Despite Google's considerable resources, Google products and services

nonetheless suffer from design flaws and security breaches which result in information flowing
in ways Google andlor users did not intend.
35.

In general, Google faces each of the vulnerabilities detailed in the section entitled

"Similar Scanning Operations Could Allow Book Copies to Be Copied and Redistributed"
above. The following sections flag specific problems that could occur, as well as noting similar
problems Google has already faced.

Goog/e's Security Systems are no/ FailprooJ
36.

In other information and distribution services, Google has failed to comply with

its commitments to users and the public. For example, in January 20 I 0, I found and reported the
information can be shared, greater restrictions on the perm issible recipients of such information,
and more precise requirements as to how information must be secured.

14

A-1219

popular Google Toolbar program - installed on "hundreds of millions" of computers 10 continuing to track users' browsing (including every web page visited) even after users had
specifically requested that the Toolbar be "disable[d]" and even afterthe Toolbar had confirmed
users' request and disappeared from screen. I I The user browsing at issue was users' most
sensitive online activities: reasonable users would activate the Toolbar's "disable tracking"
feature exactly when they sought to engage in private activities they did not wish Google to
track. Google subsequently characterized its nonconsensual information collection as "an
issue,,12 but offered no explanation for why it collected information users had specifically
indicated, and Google had agreed, should not be collected. Google has paid no compensation to
affected users. Neither did Google promise to undo the error: Google never offered to let
affected users identify themselves so Google could delete their data from its records.
37.

In early 2010, Google introduced Buzz, a social network for connecting to online

colleagues and sharing information about who is doing what. For users of Google's email
service, Gmail, Buzz shared with the general public the names of the persons Gmail users
corresponded with - information Google had previously indicated it would keep confidential.
Google subsequently faced class litigation for this information breach, alleging that affected
users suffered direct economic loss as a result of Google's information revelation. For example.

10 Ian Paul. "Google Toolbar Tracks Some Browsing Even When It's Not Supposed To." PC
World. January 25,2010.
http://www.pcworJd.com/article/187670/google toolbar tracks some browsing even when its
not supposed to.html.

II Benjamin Edelman. "Google Toolbar Tracks Browsing Even After Users Choose 'Disable'."
January 26, 2010. http://wv.'W.benedeJman.org/news/012610-l.html.

12 Barry Schwarz. "Disabling The Google Toolbar Doesn't Stop Google From Tracking You."
January 26, 2010. http://searchen gineland.com!disabling-the-google-toolbar-doesnt -stop-googlefrom-tracking-you-34438

15

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Buzz revealed the persons sending email to and receiving email from Andrew MeT ,aughlin, who
had previously served as a Google lobbyist, and was working in the White House as deputy
Chief Technology Officer of the United States. Buzz's information revelation indicated that Mr.
McLaughlin had engaged in impetmissible activities with his prior employers, in violation of
White House ethics rules. After Buzz-posted information prompted a complaint and an
investigation, Mr. McLaughlin was formally reprimanded for the improper communications. 13
To the best of my knowledge, Google never offered any compensation to Mr. McLaughlin or
other affected Gmail users.
38.

In addition, during February 2012, researchers discovered that Google was

bypassing Safari and Intemet Explorer privacy settings to collect data that those browsers would
ordinarily decline to provide. 14 While Google ceased further collection via these methods,
Google has not offered to delete infonnation improperly collected, nor has Google offered to
compensate affected users.
39.

In each of these examples, Google's services worked in exactly the way Google's

engineers designed, in a way any Google engineer could have noticed through straightforward
testing and, in many instances, in a way Google staff specifically intended. Yet Google lacked
authorization for these information collection and distribution practices.
Rogue Google Employees Could Access or Redistribute Book Contents
40.

In September 2010, news reports revealed that David Barksdale, a senior Google

engineer, had used his privileged position at Google to spy on four teenagers for months.

13 J. Nicholas Hoover. "White House Reprimands Deputy eTO." Information Week. May 17,
2010. http://www.infomlationweek.com/news/govemmentileadership/224900083.
14 Jonathan Mayer. "Safari Trackers." February 17, 2012.
http://cyberlaw.stanford.edu/blog/20 12/02/safari-trackers .

16

A-1221

Because Barksdale was a Site Reliability Engineer at Google, he was able to tap into call logs for
Google Voice (records of phone calls to and from the youths), read the youths' instant message
chat logs, and unblock himself from buddy lists in order to send instant messages to and from the
youths. Barksdale used each of these methods to access the communications of the affected
youths. While Google terminated Barksdale's employment after thesc practices became known,
Barksdale was able to continuc his practiccs for months without GoogJc's internal controls
noticing what he was doing. IS Google subsequently admitted that it had previously caught at
least one other Google staff person accessing user data without authorization. 16
Hackers Could Access or Redistribute Book Contents

41.

Outside hackers could access or redistribute book contents. Many hackers

disagree with the public policy embodied in applicable copyright law. For example, during
January 2012, hackers disabled web sites ofthe U.S. Department ofJustice and FBI, trade
associations Recording Industry Association of America and Motion Picture Association of
America, and record labels Universal, BMI, and Warner Music Group, when hackers
disapproved of possible revisions to copyright law then under discussion in Congress. 17 Google's
digitized book contents thus could attract hackers seeking to redistribute notable information.
42.

In January 2010, Googlc reported a "highly sophisticated and targeted attack on

our corporate infrastructure originating from China that resulted in the theft of intellectual
15 Adrian Chen. "GCreep: Google Engineer Stalked Teens, Spied on Chats." Gawker.
September 14,2010. http://gawker.com/5637234/gcreep-google-engineer-stalked-teens-spiedon-chats.
16 Jacon Kincaid. "This Is the Second Time a Google Engineer Has Been Fired for Accessing
User Data." TechCrunch. September 14,2010.
17 Ingrid Lunden. "SOPA Blackout, Anonymous-Style: FBI, DOJ Sites Downed In Megaupload
Protest." paidContent.org. January 19, 2012. http://paidcontent.orglarticle/4 J 9-sopa-b1ackoutanonymous-style-doj-riaa-hacked-in-megaupload-protestl.

17

A-1222

property from Google.,,13 A subsequent analysis by McAfee indicated that hackers had
specifically sought access to the source code for Google systems, and that hackers had even
obtained the ability to alter the source code for Google systems. 19 If Google cannot keep its own
intellectual property secure from attackers, it is plausible to conclude that Google cannot keep
book contents invulnerable to security breaches.

A Single Breach Could Cause Devastating Harm to Authors
43.

A single breach of the systems that store book contents could allow book contents

to become ubiquitous online. In particular, after that single breach occurs, users are likely to
copy andlor share the material en masse, preventing any subsequent efforts to resecure book
contents. For example, on August 4,2006, AOL posted twenty million searches performed by
more than 650,000 users over a three-month period. Once AOL realized that posting this
information was inadvisable (because it included myriad sensitive subjects and could be easily
linked to individual AOL users), AOL removed the file from its servers the same week, but the
file remains easily available, including on the web and via BitTorrent.

2o

Similarly, Wikileaks in

February 2010 began publishing hundreds of thousands of pages of classified material. The
information remains easily available, including via straightforward Google searches. The
information simply cannot be "unpublished" once it has become publicly available on the

18 David Dmmmond. Official Google Blog. January 12,2010.
http://googleblog.blogspot.com120 10/0 l/new-approach-to-china.html .
19 McAfee Labs. "Protecting Your Critical Assets: Lessons Learned from 'Operation Aurora. '"
March 2010.
http://www.wired.com/images blogs/threatlevel!20 10/03/0perationaurora wp 0310 fnl.pdf.

20 For example, I searched Google for "AOL search torrent" (without quotes) on March 27,
2012. Among the first ten results, I found six locations where I could download the files.
http://gregsadetsky.com/aol-datal presents nine different locations where the data remains
available.

18

A-1223

Internet. The ongoing availability of materials previously distributed via Library.nu - months
after Library.nu was shut down by court order - further confirms that once book copies have
been freely distributed online, it is virtually impossible to prevent their further redistribution.
44.

Thus, if book contents become available once - via a breach of book copies

scanned by others, via a breach in libraries' copies of books scanned by Google, or via a breach
of Go ogle's own systems - the book contents are likely to be available easily and indefinitely.
45.

Even if one considers the likelihood to be remote that a particular work will

become available through piracy or some other security breach (and I do not think it is remote at
all), one must evaluate that risk in light ofthe devastating effect of such a breach on the
rightsholder.
Conclusion
46.

It is my opinion that the Defendants' activities as described above present serious

security concerns and put at risk the abil ity of copyright owners to decide whether and when to
exploit electronic copies of their works. This risk will be exacerbated further if Defendants'
practices of digitally copying, and in certain instances, distributing and displaying books without
rightsholder permission are found to be fair uses and become widespread. Conversely, requiring
Defendants and others to obtain the permission of rights holders before engaging in such
practices could prompt negotiations between rightsholders and those who seek to digitally use
their works, thereby fostering standards tor the allocation of the costs and risks of any harm
flowing from such security breaches.

Dated: Cambridge, MA
June 27, 2012

Benjamin Edelman

19

A-1224

EXHIBIT A
Benjamin Edelman - Curriculum Vitae

A-1225

169 Walnut St.
Brookline, MA 02445

[e-mail]
[phone]

Benjamin G. Edelman

Experience
Assistant professor, Harvard Business School. Negotiations, Organizations & Markets unit. (Apri12007
Fields: Industrial organization, market design, information economics.
Research interests: Electronic markets. Internet advertising, reputation, and fraud. Automated data collection.
Teaching: Networked businesses, market design, information systems, online marketing, negotiation.

present)

Independent consultant and expert witness (November 1999 - present)
Conducted quantitative analyses and empirical testing for a variety of clients including the American Civil Liberties Union, AOL,
Microsoft, National Association of Broadcasters, National Football League, New York Times, Universal Music Group, and
Washington Post on topics including online advertising, advertising fraud, spyware, spam, pay-per-click advertising and click
fraud, Internet filtering, geolocation and t.argeting, privacy, security, automated data collection, and user interface design.
Qualified as an expert in Federal court on mUltiple occasions, and provided oral testimony under direct and cross examination.
Student Fellow; Technology Analyst, Berkman Center for Internet & Society (May 1998 - January 2004)
Conducted empirical studies of the Internet's domain name system, spyware/adware, content filtering by network intermediaries.
Developed software systems for interactive real-time communication among class/meeting participants. Designed and operated
system for webcast of and remote participation in numerous Berkman Center, Harvard Law School, and Cambridge community
events as well as twelvc ICANN public meetings.

Education
Harvard Graduate School of Arts & Sciences - Ph.D., Economics, 2007. Dissertation: "Topics in Internet Advertising."
Harvard Law School- J.D., 2005.
Harvard Graduate School of Arts & Sciences - A.M., Statistics, 2002.
Harvard College - A.B., Economics, summa cum laude, 2002; Phi Beta Kappa.
Woodrow Wilson Senior High School- Washington, DC: 1998; valedictorian.

Representative Research
Internet Advertising and the Generalized Second Price Auction

(American Economic Review, 2007)

with Michael Ostrovsl.;y and Michael Schwarz

Optimal Auction Design and Equilibrium Selection in Sponsored Search Auctions

(Ameri""n Economic Review. 2010)

with Michael Schwarz

Strategic Bidder Behavior in Sponsored Search Auctions
Measuring the Perpetrators and Funders of Typosquatting

(Decision Support Syslems, 2007) with Michael Ostrovsky
(FC·IO. SV LNCS) wnl! Tyler Moore; web mtroduction and appendix also available

Greedy Bidding Strategies for Keyword Auctions

(l'roceedings of the 9th ACM Conference on Electronic Commerce. 20(7)
with Matthew Cary, Apama Das, loannis Giotis. Kurtis Heimerl. Anna Karlin. Claire Mathieu. and Michael Schwarz

On Best-Response Bidding in GSP Auctions

(2008)
with Matthew Cary. Apama Das. loannis Giotis, Kurtis Heimerl. Anna Karim, ClaIre MathIeu. and Michael Schwarz

Running Out of Numbcrs: Scarcity oflPv4 Addresses and What To Do About It

(ProceedingsofAMMA.2I1M)

Adverse Selection in Online "Trust" Certifications (Proceedmgs aflCEe 2009)
Adverse Selection in Online "Trust" Certifications and Search Results (Electronic Commerce Research and ApplicatIOns. 2111 J)

sv LNCS)

Deterring Online Advertising Fraud Through Optimal Payment in Arrears

(FC '09.

Securing Online Advertising: Rustlers and Sheriffs in the New Wild West

(published ill Beal/tiji" Security. 2009)

Assessing and Improving the Safety of Internet Search Engines

(published in file Rising Power afSearch Engines un the Internet. 2006)

Web Sites Sharing IP Addresses: Prevalence and Significance (2003)
Empirical Analysis of Internet Filtering in China (2002)
Published

In

cyber!aw harvard edulpeopleledelmanJip-sharing

with Jonathan Zittram
IEEE In/ernet Computing as "Internet Flitenng in China" (March-Apfll 2003)

cyber.law.harvard.cdulfliteringfchtna

A-1226

Long-Term Research Projects
Strategies and Outcomes in Search Engine Advertising (2004-)
"Spyware": Research, Testing, Legislation, and Suits (2002-)
Resources for Affiliates and Affiliate Merchants (2004-)

benedelman.org/spyware

benedelman org/affiliates

Documentation of Internet Filtering Worldwide (2002-2003)

with Jonathan Zittrain

cyber.law.harvard.edulfiltering

The Top-Level Domain Evaluation Project (2002-2003)

with Jonathan Ztttram

Classroom and Meeting Technology Tools (1998-2002)

eyberlaw harvard.edulmeetingtools

cyber law.harvard edll/tlds

rCANN Public Meeting Archives, Notes, and Briefing Books (1998-200 I)

cybeLlaw.harvard.eduilcann

cyberlaw.harvard edulifwp

Additional Writings
Advertising Disclosures: Measuring Labeling Alternatives in Internet Search Engines (2012)
with Duncan Gilchrist

Information Econumics and Policy

Internet Protocol Numbers and the American Registry for Internet Numbers: Suggested Guidance for Bankruptcy
Trustees, Debtors-in-Possession, and Receivers. BNA's Bankruptcy Law Reporter (2012) with Steven Ryan and Matthew Martel
Using Internet Data for Economic Research (2012)
Earnings and Ratings at Google Answers (2012)

Journal 0/ Economic Perspectives

Economic InqUIry

Pricing and Efficiency in the Market for IP Addresses (201 I)

"ith Michael Schwarz

The Design of Online Advertising Markets (forthcoming)

Handbook o{Mariwl Design

Bias in Search Results?: Diagnosis and Response (2011)

TheJndianJournalofLawandTechnology

Measuring Bias in "Organic" Web Search (2011)

with Ben Lockwood

benedelman.orglsearchbias

To Groupon or Not to Groupon: The Profitability of Deep Discounts (2010)

HBS Working Paper- with Scott Kominers and Sonia JafTe

and To Groupon or Not To Groupon. New Research on Voucher Profitability (2011) HBR Blogs

Least-Cost A voiders in Online Fraud and Abuse (2010)

IEEE Security and Privacy

The Pathologies of Online Display Advertising Marketplaces (2010) ACM Sigecvm Exchanges
Competing Ad Auctions: Multi-homing and Participation Costs (20 I 0)
Priced and Unpriced Online Markets (2009)

with Itai Ashlagi and Hoan Soo lee

(Journal o/Economic Perspeclives, summer 2009)

Red Light States: Who Buys Online Adult Entertainment? (2009)

(Journal o/Heonomie Perspectives, "inter 2009)

Who Owns Metrics?: Building a Bill of Rights for Online Advertisers (2009)
How to Combat Online Ad Fraud (2009)

Harvard Business Review

The Dark Underbelly of Online Advertising (2009)
Fraud in Online Advertising (2009)

(Journal ojAdvertising Research, Dec 2009)

Harvard BUSiness Review Online - HBR Now

The Business Standard (India)

Typosquatting: Unintended Adventures in Browsing (2008)
epC/CPA Hybrid Bidding in a Second Price Auction (2008)
When the Net Goes Dark and Silent (2002)

McAfee Security Journal
with Hoan Soo Lee

South Chma Morning Post (np-ed)

The Effect of Editorial Discretion Book Promotion on Sales at Amazon.com (2001-2002)

benruelman org/pubslthesis-lOlrO.pdf
Seymour and Ruth !Jams Pnze for Rest Thesis in Economics, Thomas Temple Hoopes Prize for Undergraduate Research

Web Site Writings
Flash-Based Cookie-Stuffer Using Google AdSense to Claim Unearned Affiliate Commissions from Amazon (2012)
benedelman.orginews/050712-1 hunl

with Wesley Brandl

Search My Logs of Affiliate Fraud and Affiliate Fraud Information Lookup (2012)

Wlth Wesley Brandi

2

A-1227

Hack-Based Cookie-Stuffing by Bannertracker-script (2012)
Large-Scale Cookie-Stuffing at Eshop600.co.uk (2012)

benedelman.orginews/013012-Jhtml

Advertising Disclosures in Online Apartment Search (2012)
Google Tying Google Plus and Many More (2012)
Revisiting Search Bias at Google (2011)

benedelman.org!newsl0227 I 2-1hunl

with Wesley Brandi

with Wesley Brandi

benedelman.org!adlabeling!apartmentsearch

with Paul Kommers

henedelrnan.org!news/OJl212-1html

bcncdclman.org!news/l I II II-lhtml

Understanding the Purposes - and Weaknesses - ofOnline-to-Omine Discounting

Pymnts.com

(2011)

Towards Improvement in Singapore's Transportation Etliciency and Environmental Impact (2011)
submission to the National Climate Change Secretariat of Singapore

Google's Dominance - And What To Do About It

and

Finding and Preventing Biased Results (2011)

American Constitution Society for Law and Policy - Blog Debate

Advertisers' Missing Perspective in the Goog1e Antitrust Hearing (2011)
Implications of Google's Pharmacy Debacle (20 II)
On line Discount Vouchers

Letter-Writing Tool

bcncdclman.orglncws/082611-Jhtml and republished at Betanews

(20 II)

Consumer Protection in Online Discount Voucher Sales
Revisiting Unlawful Advertisements at Google (20 I I)

vouchercomplaints.org

(20 II)

with Paul Kominers and Xiaoxiao Wu

benedelman.orglvoucher-consumer-protection with Paul Kominers

benedelmanorginews/05ISII-I.html

Personal Rapid Transport - Environmental Issues for Earth Day (20 II)
Remedies for Search Bias (2011)

benedelman.org!newsl0'!2011-Jhtml

and excerpted at Bullington Post

hbs.eduJnewslreleases/earthday042011.html

benedelman.orginews/0222I I-lhtml

In Accusing Microsoft, Google Doth Protest Too Much (20 II)

HBR Blogs

Knowing Certain Trademark Ads Werc Confusing, Google Sold Them Anyway -- for $100+ Million (2010)
benedelman.org!newsIl130 I 0- I.html

Advertisers Should Raise Their Voices Against Arrogant Google (2010)
Hard-Coding Bias in Google 'Algorithmic' Search Results (2010)
A Closer Look at Google's Advcrtisement Labels (2010)
On Facebook and Privacy (2010)

mUmBRELLA

benedelman.org!hardcoding

benedelman org!adlabeling!google-nov20 I 0 html

www.hbs.eduJnewsJreleases/facultyontacebookprivacy.html

Tying Google Affiliate Network (2010)

bcncdclrnan.orglncws/0Y2SIO-1 html

Facebook Leaks Usemames, User IDs, and Personal Details to Advertisers (2010)
Sony's Crackle: Invisible Traffic Galore (2010)

benedelman.orginews/052010-1 html

benedelman.org!news/0427\o-1 html

Protecting Privacy by Design (2010) AlcAfee AVERT Blog
Google's Privacy Breach: Lessons for Companies (2010)

Harvard Business Review Online - HBR Now

Google Toolbar Tracks Browsing Even After Users Choose "Disable" (2010)
Upromise Savings -- At What Cost? (2010)

benedellllan.orginews/OI2610-I.htIllJ

benedellllan.org!newslOI2110-l.html

Google Still Charging Advertisers for Convcrsion-Inflation Traffic (20 10)

benedelman orginewsiO I as I O-Ihtml

Towards a Bill of Rights for Online Advertisers (2009)

henedelman.org!advertisersnghts
(excerpted in Advertising Week Welcome Guide. excerpted in Huningron Post)

Payment Card Network Rules Prohibit Aggressive Post-Transaction Tactics (2009)
Deception in Post-Transaction Marketing Offers (2009)

benedellllan.orgiposttrallsaction/cardnetworks

benedelman.orglposttransaction (including Senate testimony I

How Google and Its Partners Inflate Measured Conversion Rates and Increase Advertisers' Costs (2009)
benedelman.org!news/OS 1309- I .html

In Support of Utah's HB450 (2009)

benedelman.orglnews/030909-I.htll1l

False and Dcceptivc Display Ads at Yahoo's Right Media (2009)

benedelmanorglrightmedia-deception

3

A-1228

Privacy Lapse at Google JotSpot (2008)

benedelman.orglgoogle-jot-privacy

Hydra Media's Pop-Up Problem -- Ten Examples (2008)

benedelman.orginewsJl 0 1408-lhtrnl

CPA Advertising Fraud: Forced Clicks and Invisible Windows (2008)

benedelman.orginewsIIOO708-1 html

Auditing Spyware Advertising Fraud: Wasted Spending at VistaPrint (2008)

benedelman org/newsl09300R-1 html

PPC Platform Competition and Google's "May Not Copy" Restriction (2008)
Debunking Zango's "Content Economy" (2008)

henedelman orginews/062708-I.html

benedelman.org/newS/0528U8-1 html

Coupons.com and TRUSTe: Lots of Talk, Too Little Action (2008)
Delaying Payment to Deter Online Advertising Fraud (2008)

benedelman.org/news/03180S-1 html

benedelman.org/paymemdelay

Critiquing C-NetMedia's Anti-Spyware Offerings and Advertising Practices (2008)

benedelman.orglnews/02140S-1 html

Sears Exposes Customer Purchase History in Violation of Its Privacy Policy (2008)

henedeiman.org/newslOI0408-1 html

The Sears "Community" Installation of ComScore (2008)
A Closer Look at Coupons.com (2007)

henedelman.orgillewsIOIOI08-l.htrnl

benedelman.otginews/082807-lhtrnl

Spyware Still Cheating Merchants and Legitimate Affiliates (2007)

henedclman.orglncwsl052 107-1 html

How Spyware-Driven Forced Visits Intlate Web Site Tratlic Counts (2007)
Advertising Through Spyware -- After Promising To Stop (2007)
Why I Can Never Agree with Adware and Spyware (2007)
Bad Practices Continue at Zango (2006)
Intermix Revisited (2006)

benedelmanorginewsl050707-lhtml

benedelman.orginews/031407-Lhtrnl

technology.guardian.coukionlinelinsideitistory/O.,1997629,OO.html

with Eric Howes henedelman.orglnewsfI12006-l.hlml

benedelrnanorglnewsll 10806-Lhtml

Current Ask Toolbar Practices (2006)

henedelman orglspyware/ask-toolbars

False and Deceptive Pay-Per-Click Ads (2006)

benedelmanorglppc-scams

Cookies Detected by Anti-Spyware Programs: The Current Status (2006)
How Vonage Funds Spy ware (2006)

wwwvinnylmgharncomfspeclalreports/cookledetections

benedelman.org/news/071806-Lhtml

Spyware Showing Unrequested Sexually-Explicit Images (2006)
Banner Farms in the Crosshairs (2006)

henedelman.orginews/062206-l.html

benedelman.orginews/061206-Lhtml

The Safety of Intcrnet Search Engines (2006)

slleadvisoLcomfstudiesfsearch_safety_may2006

New York v. Direct Revenue, LLC - Documents and Analysis (2006)

henedelman orglspywarelnyag-dr

The Spyware - Click-Fraud Connection - and Yahoo's Role Revisited (2006)
Advertisers Funding Direct Revenue (2006)
Critiquing lTSA's Pro-Adware Policy (2006)
Advertisers Funding 180solutions (2006)

Affiliatc Hall of Shame (2006)

bcnedeiman.org/ncws/033106-2.html

benedelman.orgispyware/imagesiISO-jan06
benedelman orginewsf022006-I.html

benedelman.orginewsfOI2606-I.htrnl

benedelman.orginewsiOI1606-l.html

180solutions's Misleading Installation Methods - Dollidol.com (2006)
Scanning for Solutions (2005)

benerlelman.orglnews/040406-l.htrnl

bcncdclman.org/spywarelimages/dr-mar06

Nonconsensual 180 Installations Continue (2006)
Pushing Spyware through Search (2006)

with Hannah Rosenbaum

benedelman.orglspyware!installationsidollidol-180

puhhcatlons mediapost comfindex.cfm?fuseaction-Arlicles.san&s=37284

What Claria Doesn't Disclose (Any More) (2005)

bcnedelmen orginewslIIIS05-I.hunl

Claria Shows Ads Through Exploit-Delivered Popups (2005)
Video: New.net Installed through Security Holes (2005)

bcncdelman.orglne"slIOI805-1 html

bencdelman.orglnewS/IUU5U5-l.htrnl

4

A-1229

How Affiliate Programs Fund Spyware (2005)
How Expedia Funds Spy ware (2005)
How Yahoo Funds Spyware (2005)

bcnedelman.orglnews/091405-l.html

bcnedelman.orginewsl090705-I.hunJ

bcnedelmanorginewsl083105-l.html

What Passes for "Consent" at l80solutions (2005)

bcnedelman.orginewsl062805-I.html

Google's Role: Syndicated Ads Shown Through Ill-Gotten Third-Party Toolbars (2005)
Ask Jeeves Toolbar Installs via Banner Ads at Kids Sites (2005)
lIotbar Installs via Banner Ads at Kids Sites (2005)
The 180 Turnaround That Wasn't (2005)
The PacerD Installation Bundle (2005)

bcnedelman.orglnews/060605-l.html

bcnedelman orgispywarelinstallations/askJccvcs-banner

bcnedelman.orglspywarclinstallationslkldzpage-hotbar

adbumb.comladbumbI59.html

OOnedelman orglspyware/installations/pacerd

Claria's Misleading Installation Methods - Ezone.com (2005)

OOnedelman.orgispywarelinstallations/ezone-claria

Claria's Misleading Installation Methods - Dope Wars (2005)

OOnedelman.orgispyware/mstallaII<JOs/tlopewars-claria

180solutions's Misleading Installation Methods - Ezone.com (2005)
3D Desktop's Misleading Installation Methods (2005)

bcnedelman.orglspyware/installations/e70ne-1 RO

OOnedelman.orglspywarelinstallation.'il3d-screensaver

Comparison of Unwanted Software Installed by P2P Programs (2005)
Advertisers Supporting eXact Advertising (2005)

OOnedelman.orglspywarc/cxact-advertisers

How Google's Blogspot Helps Spread Unwanted Software (2005)
How VeriSign Could Stop Drive-By Downloads (2005)
Intennediaries' Role in the Spyware Mess (2005)
Media Files that Spread Spyware (2005)

benedelman.orginews/020305-1 html

OOnedelman orginews/OI0205-I.html
OOnedelman.orglnewsil2 I 504-l.html

Direct Revenue Deletes Competitors from Users' Disks (2004)

Gator's EULA Gone Bad (2004)

OOnedelman.orginews/022205-I.honl

OOnedelmanorginewsJ052305-l.honl

Video: Ebates Installed through Security Holes (2004)

Who Profits from Security Holes? (2004)

OOnedelman.orglspywarc/p2p

OOnedelman.orglnewsI120704-l.html

OOnedelman.orginewsIlI1804-1 html

henedelman.orginews/I12'IU4-1 html

Grokster and Claria Take Licenses to New Lows, and Congress Lets Them Do It (2004)
California's Toothless Spyware Law (2004)

OOnedelman.orginews/092904-1html

The Effect 0 f 180so lutions on Affiliate Commissions and Merchants (2004)
WhenU Spams Google, Breaks Google "No Cloaking" Rules (2004)
WhenU Copies 26-'- Articles from 20+ News Sites (2004)
Advertisers Using WhenU (2004)

OOnedelman orginews/lOO904-1html

OOnedelman.orgl'pywareIl80-affiliales

OOnedelman.orglspyware/whenu-spam

b<:nedelman.orgispyware/whenu-copy

OOnedelman.orglspyware/whenu-advertisers

WhenU Security Hole Allows Execution of Arbitrary Software (2004)
WhenU Violates Own Privacy Policy (2004)

OOnedelman.orglspyware/whenu-seeunly

OOnedelman orglspywarelwhenu-pnvacy

Methods and Effects of Spy ware (FTC Comments) (2004)
A Close Reading of Utah's Spyware Control Act (2004)

bcnedelman.orglspywarelftc-031904.pdf

OOnedelman.orglspywarelutah-mar04

Blocked Sites will Return, but with Limited Access (2003)

South China Morning Post (op-ed)

Web Sites Sharing IP Addresses: Prevalence and Significance (2003)
Documentation of Gator Advertisements and Targeting (2003)
Empirical Analysis of Google SafeSearch (2003)

eyOOr law.harvard.etlulpeopldedelmaniip-shanng

cyOOLlaw.harvard.edu/peopJe/edclmaniadsigalor

cybcr.law.harvard.edulpeopleledelman/google-safeseareh

Large-Scale Registration of Domains with Typographical Errors (2003)

eyOOr law harvard edu/people/edeJmanitypo-domalns

5

A-1230

Technical Responses to Unilateral Internet Authority: The Deployment of Veri Sign "Site Finder" and ISP Response
(2003) "ith Jonathan Zittrain cyher.law.harvard.edultldslsit<:fmder
Compliance with UDRP Decisions: A Case Study of Joker-com (2003)
Domain Name TyposquaUer Still Generating Millions (2003)
Localized Google Search Result Exclusions (2002-2003)

cyber.iaw.harvard.edulpeoplclcdelmanludrp-compliance

circleidcorniarticlellOI_O_l_O_C

with Jonathan Zittrain

cyberlaw.harvard.edulfiltering/google

Defensive Registrations: Why They're Still Needed, and How to Make Them Earn Their Keep (2002)
Verisign DigItal Brand Management Digital Branding Bulletin, www.verisign.comiserviceslcdnslnewS/columnist_2OU212html

Documentation ofInternet Filtering in Saudi Arabia (2002)
Localized Google Search Result Exclusions (2002)

with Jonathan Zittrain cyberlaw.harvard edulfiltering/saudiarabia

wth Jonathan Zittrain cyberlaw.harvard edulfiltering/filtering/google

Analysis of Domain Reregistrations Used for Distribution of Sexually-Explicit Content (2002)
cyber.law.harvard.edulpeopleledelmanlrenewals

Large-Scale Intentional Invalid WHOIS Data (2002) cyberlaw.harvard,edulpeuple/edelmanlinvalid-whois
.NAME Registrations Not Conforming to .NAME Registration Restrictions (2002)
cybcr law. harvard edulpeople/edelmanlname-restrictions

Alternative Perspectives on Registrar Market Share (2002)

cyberlaw,harvard,eduipeopleledelmaniregistrar-chClce

DNS as a Search Engine: A Quantitative Evaluation (2002)

cyber.law.harvardedulpeopleledelmanldns-as·search

Disputed Registrations in .BIZ (2002)

cyber.law.harvard.edulpeopleledelmanlbiz-sunris~

TLD Registration Enforcement: A Call for Automation (2002)
Invalid WHOIS Data: Who Is Responsible? (2002)

C1rcle,d cOmiarticle/66_0_I_O_C

circicidcornianiclel72_0_I_O_C

circleidcorniarticlcl79_U_I_U_C

iCravetv.biziEntervision Retransmits CNN, Cartoon Network, PAX TV, California NBC Affiliate (2002)
cybeLlaw,harvard.eduipeopleledelmanlicravc

Analysis of Registrations in Alternative Root TLDs (200 I)

cyberlawharvard edulpeopleledelmanldotbiz and lpeopleledelmanldolweb

Documentation of Privacy and Security ShOlicomings at Buy .com (2000)
Understanding and Critiquing ICANN's Policy Agenda (2000)

cyher law.harvard.edulpeopleledelmanlbuy·privacy html

cybeLlaw.harvard,cdullcannipressingissues2000lbnefingbook

Software Environments for Online Deliberative Discourse (1999-2000)

cyberlaw.harvard,eduiproJcctsldeliheration

Executive Summaries of Formative ICANN Documents (1999)
cyber.lawharvard.eduipressbriefings/icann/briefingbookJexecutivcsummaries.hlml

rCANN and the Public Interest: Pressing Issues (1999)

cyberlaw.harvard.cdulicannlworkshopsllalbriefingbook

Using Trumpet Winsock on Netcom Netcruiser Accounts (1995)

cyber law,harvard.edulpcople/edelmanltrumpet hlml

Teaching Cases and Notes
Airbnb(A)and(B) (HBSCase912-019,-020) (and TN) (2011)

with Michael Luca

Attack of the Clones: Birchbox Defends Against Copycat Competitors (HBS Case 9 [2-0 I 0) (20 II)

with Peter Coles

The Online Economy: Strategy and Entrepreneurship - Course Architecture Note (HBS Note 911-069) (20 II) with Peter Coles
Mobilizing Online Businesses (JIBS Module Note 91 1-048) (2011)

with Peter Coles

Online Marketing at Big Skinny (IIBS Case 911-033) (and TN) (2011)

With Scott Kominers

The iPhone at IVK (TN) (HRS Teaching Note 911-414) (2010)
Akamai, Inc. (HBS Case 804-158) (20 10)

wllh Thomas Eisenmann and Eric Van den Steen

Google Inc. and Google Inc. (Abridged) (HRS Case 910-036 and 910-032) (2010) (and TN)

with Thomas Eisenmann

Personal Rapid Transport at Vectus, Inc. (HBS Case 910-010) (2010) (and TN)
eBay Partner Network (A), (B), and (C) (HBS Case 910-008, -009, and -012) (2009) (and TN)

with Ian Larkin

6

A-1231

Symbian, Google & Apple in the Mobile Space (A) and (B) (HBS Case 909-055, -056) (2009)

with F. Suarez & A. SrinIvasan

Distribution at American Airlines (A) and (B) (HBS Ca<;e 909-035 and -036) (and TN) (2009)
Windows Vista (HBS Case 909-038) (2009)
Online Restaurant Promotions (HBS Case 909-034) (and TN) (2009)
Ad Classification at Right Media (HBS Case 909-032) (and TN) (2009)
Consumer Payment Systems - United States (HBS Case 909-006) (2009) (and TN)
Consumer Payment Systems - Japan (HBS Case 909-007) (2009) (and TN)
TheLadders (HBS

Ca~e

908-061) (2008) (and TN)

with Andrei Hagiu

with Andrei Hagiu

WIth Peter Cole" Brian Hall, and Nicole Bennett

Opening Dot EU (A) and (B) (HBS Case 908-052 and -053) (2008)
Microsoft adCenter (HBS Case 908-049) (and TN) (2008)

with Peter Coles

Programming Experience
Microsoft Visual Basic (15+ years experience), VRNET

Mathworks MatLab

Stata

SPlus / R

Python

PHP

Awards
Emerald Citations of Excellence Award (20 II)
ECCH Award for Outstanding Contribution to the Case Method - Strategy and General Management (2011)
Best Paper Award, Honorable Mention - The II th International Conference on Electronic Commerce (2009)
Harvard University Graduate Economics Fellowship (2003-2006)
John M. Olin Fellowship in Law and Economics (2003-2004,2004-2005)
Hoopes Prize for Undergraduate Research (2002)
Seymour and Ruth Harris Prize for Best Honors Thesis in Economics (2002)
Jolm Harvard Scholarship, Harvard College (\998-1999,1999-2000,2000-2001)
Rank I Honors, Harvard College (1998-1999, 1999-2000,2000-2001)
Phi Beta Kappa, Harvard College (200 I)
Undergraduate Honors Research Scholarship, Department of Economics, Harvard College (200 I)
Detur Prize, Harvard College (I 999)

Congressional and Expert Testimony
US Senate, Commerce Committee (2009) (statement for the record)
US House of Representatives, Committee on the Judiciary (2008) (invited / hearing cancelled)
US Senate, Committee on Commerce, Science, and Transportation (2008)
Federal Trade Commission Public Hearing on EtTectiveness ofCAN-SPAM (2005)
District Court, Third Judicial District of Utah (2004)
US Federal Court, Eastern District of Michigan (2003)
US House of Representatives, Committee on the Judiciary (2003)
US Federal Court, Eastern District of Pennsylvania (2002)
US Federal Court, Western District of Pennsylvania (2000)

7

A-1232

Academic Service
Associate Editor: Journal of Economic Perspectives (2008-2012)
Referee: American Economic Review, Quarterly Journal of Economics, Journal of Applied Economics, RAND Journal of
Economics, Management Science, Journal of Economics & Management Strategy, Sponsored Search Workshop,
Workshop on the Economics ofInformation Security, Workshop on the Economics of Securing the Information
Infrastructure, Manufacturing & Services Opemtions Management, The International Conference on Electronic
Commerce (2009), International Review of Law and Economics, Journal ofIndustrial Economics, Operations Research,
Berkeley Electronic Press - Policy & Internet, Review of Economic Studies, Economics Letters, Management Science,
Review ofIndustrial Organization, Telecommunications Policy, Emerald Program, National Science Foundation,
Manufacturing and Service Operations Management
Program committee: Workshop on the Economics of Securing the lnfonnation Infrastructure (2006), Sponsored Search
Workshop (2007), WWW2008, Fourth Workshop on Ad Auctions (2008), The First Conference on Auctions, Market
Mechanisms and Their Applications (2009), ACM Conference on Electronic Commerce (2010), Workshop on the
Economics ofInformation Security (2010) , Workshop on the Economics of Information Security (2011), Sevcnth
Workshop on Ad Auctions (20 II), The Second Conference on Auctions, Market Mechanisms and Their Applications
(2011), WWW2012, Anti-Phishing eCrime Researchers Summit (2012)
Co-organizer: Sixth Workshop on Ad Auctions (2010)
Non-resident tutor I senior common room mcmber: Cabot House (2004-2012)

8

A-1233

EXHmITB
Benjamin Edelman - Prior Testimony at Trial or Deposition
Proceeding
National Football League, et al. v.
TVRADIONOW Corporation, et
al.
Multnomah County Public
Library, et al. v. United States of
America
Washingtonpost.Newsweek
Interactive Company, LLC, et al.
v. The Gator Corporation
Wells Fargo & Company, et aI.,
v. WhenU.com, Inc.
WhenU.com, Inc. v. The State of
Utah
The People of the State of
California ex. reI. Rockard J.
Delgadillo, Los Angeles City
Attorne.l' v. Intermix Media, Inc.
State of South Carolina v. Casale
Media, Inc., et al.

UMG Recordings, Inc., et al. v.
Veoh Networks, Inc., et al.
Netscape Communications Corp.
v. Valueciick, Inc., et aI.,
Arista Records, et aI., v. Myxer,
Inc., et al.
Stephanie Lens v. Universal
Music Corp., et al.

Authors Guild v. Google Inc.

Court
U.S. District Court,
Western District of
Pennsylvania
U.S. District Court,
Eastern District of
Pennsylvania
U.S. District Court,
Eastern District of
Virginia
U.S. District Court,
Eastern District of
Michigan
Utah District Court
Los Angeles
Superior Court

South Carolina
Court of Common
Pleas, Richland
Count.l'
U.S. District Court,
Central District of
California
U.S. District Court,
Eastern District of
Virginia
U.S. District Court,
Central District of
California
United States
District Court,
Northern District of
California
United States
District Court,
Southern District of
New York

Reference

Context

Year

On behalf

No. Civ.A. 00120 and 00121
No. Civ.A. 011322

fIearing

2000

of
Plaintiff

Deposition,
hearing

2002

Plaintiff

02-909-A

Deposition

2002

Plaintiff

03-71906

Deposition,
hearing

2003

Plaintiff

Civ. No.
040907478
BC343196

Hearing

2004

Defendant

Deposition

2006

Plaintiff

08-CP-400729

Deposition

2008

Plaintiff

No. CV 075744AHM
(AJWx)
No. I :09-cv225-TSE-IDD

Deposition

2009

Plaintiff

Deposition

2009

Plaintiff

Deposition

2009

Plaintiff

Deposition

20]0

Defendant

Deposition

2012

Plaintiff

No. CV 0803935 GAF
(JCx)
No. C 0703783 JF
(PVT)
No. 05 Civ.
8136 (DC)

A-1234

EXHIBITC
Benjamin Edelman - Materials Considered
In addition to the materials cited in my declaration. I have considered the
following documents:
1. First Amended Complaint in The Authors Guild Inc., et al., v. Hathitrust, et al.;
2. Plaintiffs' Briefin Support of Motion for Partial Judgment on the Pleadings in the
Authors Guild v. Hathitrust case;
3. Plaintiffs' Fourth Amended Class Action Complaint in The Authors Guild Inc., et
al. v. Google Inc.;
4. Google's Objections and Responses to Plaintiffs' First Set of Requests for
Admission in The Authors Guild Inc., et al. v. Google Inc.;
5. Plaintiffs' Class Certification Briefin The Authors Guild Inc., et al. v. Goofile
Inc.;
6. Transcript from the declaration of Joanne Zack and exhibits in support of
Plaintiffs' Class Certification Motion in The Au/hors Guild Inc., et al. v. Google
Inc.;
7. Google's Brief in Opposition to Plaintiffs' Motion for Class Certification in The
Authors Guild Inc, et al. v. Google Inc.;
8. Plaintiffs' Brief in Opposition to Defendant's Motion to Dismiss the Authors
Guild as Associational Plaintiff in The Authors Guild Inc., et at. v. Google Inc.;
9. Declarations of Daniel Clancy, dated February II, 20IO, and February 7, 2012 in
The Authors Guild Inc .. et al. v. Google Inc.;
10. Google's Supplemental Responses and Objections to Plaintiffs' Second Request
for Production of Documents and Things (Public Redacted Version);
11. Cooperative Agreement between Google and the University of Michigan;
12. Cooperative Agreement between Google and the University of California:
13. Transcript from the deposition ofJohn Wilkin (HathiTrustlUniversity of
Michigan) dated April 25, 2012;
14. Transcript from the deposition of Dan Clancy (Google) dated June 1,2012;

16. Google Books website at http://books.google.com.

A-1235
Case 1:11-cv-06351-HB Document 125

Filed 07/11/12 Page 1 of 16

Index No. 11 Civ. 6351 (HB)

- againstHA THITRlJST, et al.,
Defendants.
----------------------------------------------------------------X

DECLARAnON OF EDWARD H. ROSENTHAL
EDW ARD H. ROSENTHAL hereby declares as follows:
1.

Tam a member of Frankfurt Kumit Klein & Selz, P.c., attorneys for the Plaintiffs

in the above-captioned action.
2.

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

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

Deposition Transcripts

Depositions of Plaintiffs
3.

Attached hereto as Exhibit 1 is a true and correct copy of the transcript from the

deposition ofTJ. Stiles dated May 31, 2012.
4.

Attached hereto as Exhibit 2 is a true and correct copy of the transcript trom the

deposition ofHelge Ronning dated May 29, 2012.
5.

Attached hereto as Exhibit 3 is a true and correct copy of the transcript from the

deposition of Pat Cummings dated May 22, 2012.

A-1236
Case 1:11-cv-06351-HB Document 125

Filed 07/11/12 Page 2 of 16

deposition of Heather Christenson (University of Cali fomi a) dated April 11,2012.
8.

Attached hereto as Exhibit 6 is a true and correct copy ofthc transcript from the

deposition of Paul Courant (HathiTrustlUniversity of Michigan) dated April 24, 2012.
9.

Attached hereto as Exhibit 7 is a true and correct copy of the transcript from the

deposition of Laine Farley (University of Cali fomi a) dated April 12,2012.
10.

Attached hereto as Exhibit 8 is a true and correct copy of the transcript from the

deposition of Peter Hirtle (C' omell University) dated April 18, 2012.
II.

Attached hereto as Exhibit 9 is a true and correct copy of the transcript from the

deposition of John Wilkin (HathiTrustlUniversity of Michigan) dated April 25, 2012.

Depositions of Non-Parties
12.

Attached hereto as Exhibit lOis a true and correct copy of the transcript from the

deposition of Dan Clancy (Google) dated June 1, 2012.

Written Discovery Responses

Responses from Individual Plaintiffs
13.

Attached hereto as Exhibit 11 is a true and correct copy ofthe Objections and

Responses of Plaintiff Trond Andreassen to Defendants' First Set ofTnterrogatories and Requests
for the Production of Documents dated January 6, 2012.

2

A-1237
Case 1:11-cv-06351-HB Document 125

Filed 07/11/12 Page 3 of 16

Responses of Plaintiff Trond Andreassen to Defendants' Second Set oflnterrogatories and
Requests for the Production of Documents dated April 10,2012.
16.

"Attached hereto as Exhibit 14 is a true and correct copy of the Objections and

Responses of Plaintiff Pat Cummings to Defendants' First Set ofInterrogatories and Requests for
the Production of Documents dated January 6, 2012.
17.

Attached hereto as Exhibit 15 is a true and correct copy of the Objections and

Responses of Plaintiff Pat Cummings to Defendants' First Set of Requests for Admission dated
January 6, 2012.
18.

Attached hereto as Exhibit 16 is a true and correct copy of the Objections and

Responses of Plaintiff Pat Cummings to Defendants' Second Set ofInterrogatories and Requests
for the Production of Documents dated April 10, 2012.
19.

Attached hereto as Exhibit 17 is a true and correct copy of the Objections and

Responses of Plaintiff Erik Grundstrom to Defendants' First Set ofInterrogatories and Requests
for the Production of Documents dated January 13,2012.
20.

Attached hereto as Exhibit 18 is a true and correct copy of the Objections and

Responses of Plaintiff Erik Grundstrom to Defendants' First Set of Requests for Admission
dated January 13, 2012.

3

A-1238
Case 1:11-cv-06351-HB Document 125

Filed 07/11/12 Page 4 of 16

Responses of Plaintiff Angelo Loukakis to Defendants' First Set ofInterrogatories and Requests
for the Production of Documents dated January 13,2012.
23.

Attached hereto as Exhibit 21 is a true and correct copy of the Objections and

Responses of Plaintiff Angelo Loukakis to Defendants' First Set of Requests for Admission
dated January 12,2012.
24.

Attached hereto as Exhibit 22 is a true and correct copy of the Objections and

Responses of Plaintiff Angelo Loukakis to Defendants' Second Set of Interrogatories and
Requests for the Production of Documents dated April 10, 2012.
25.

Attached hereto as Exhibit 23 is a true and correct copy of the Objections and

Responses of Plaintiff Roxana Robinson to Defendants' First Set ofInterrogatories and Requests
for the Production of Documents with Amended Schedule A dated January 9, 2012.
26.

Attached hereto as Exhibit 24 is a true and correct copy of the Objections and

Responses of Plaintiff Roxana Robinson to Defendants' First Set of Requests for Admission
dated January 9, 2012.
27.

Attached hereto as Exhibit 25 is a true and correct copy of the Objections and

Responses of Plaintiff Roxana Robinson to Defendants' Second Set ofInterrogatories and
Requests for the Production of Documents dated March 28, 2012.

4

A-1239
Case 1:11-cv-06351-HB Document 125

L7.

Filed 07/11/12 Page 5 of 16

n.Llal.OJlI;U Jll;lLOlU <1:> C,2UllUlL LI I:> <1 LIllI; <111U l.OUllLOLOL l.OUjJY Ul LllLO VUJCl.OLIUI1:> dllU

Responses of Plaintiff Helge Ronning to Defendants' First Set of Requests for Admission dated
January 12, 2012.
30.

Attached hereto as Exhibit 28 is a true and correct copy of the Objections and

Responses of Plaintiff Helge Ronning to Defendants' Second Set ofInterrogatories and Requests
for the Production of Documents dated April 10, 2012.
31.

Attached hereto as Exhibit 29 is a true and correct copy of the Objections and

Responses of Plaintiff Andre Roy to Defendants' First Set ofInterrogatories and Requests for the
Production of Documents dated January 13,2012.
32.

Attached hereto as Exhibit 30 is a true and correct copy of the Objections and

Responses of PlaintitTAndre Roy to Defendants' First Set of Requests for Admission dated
January 13,2012.
33.

Attached hereto as Exhibit 31 is a true and correct copy of the Objections and

Responses of Plaintiff Andre Roy to Defendants' Second Set ofInterrogatories and Requests for
the Production of Documents dated April 10,2012.
34.

Attached hereto as Exhibit 32 is a true and correct copy of the Amended

Objections and Responses of Plaintiff Jack R. Salamanca to Defendants' First Set of
Interrogatories and Requests for the Production of Documents with Second Amended Schedule
A dated April 10.2012.

5

A-1240
Case 1:11-cv-06351-HB Document 125

_JU.

I\lld\..tIlC;U

Jlt;;J~lV

Q;)

1:'/\IIIUIl J""t I;)

a

Filed 07/11/12 Page 6 of 16

UUC; dllU \..tV I I t;;\..tl \.IVP! VI lit"'" \.JUJ,",\,,'LlVH.;)

auu

Responses of Plaintiff Jack R. Salamanca to Defendants' Second Set ofInterrogatories and
Rcquests for the Production of Documents dated April 10, 2012.
37.

Attached hereto as Exhibit 35 is a true and correct copy of the Amended

Objections and Responses of Plaintiff James Shapiro to Defendants' First Set of Interrogatories
and Requests for the Production of Documents dated March 26, 2012.
38.

Attached hereto as Exhibit 36 is a true and correct copy of the Amended

Objections and Responses of Plaintiff James Shapiro to Defendants' First Set of Requests for
Admission datcd April 3, 2012.
39.

Attached hereto as Exhibit 37 is a true and correct copy ofthe Objections and

Responses of Plaintiff James Shapiro to Defendants' Second Set ofInterrogatories and Requests
for the Production of Documents dated AprillO, 2012.
40.

Attached hereto as Exhibit 38 is a true and correct copy of the Objections and

Responses of Plaintiff Danicle Simpson to Defendants' First Set ofInterrogatories and Requests
for the Production of Documents dated January 13, 2012.
41.

Attached hereto as Exhibit 39 is a true and correct copy of the Amended

Objections and Responses of Plaintitf Daniele Simpson to Defendants' First Set of Requests for
Admission dated April 3, 2012.

6

A-1241
Case 1:11-cv-06351-HB Document 125

Filed 07/11/12 Page 7 of 16

Responses ofPlaintiffTJ. Stiles to Defendants' First Set ofInterrogatories and Requests for the
Production of Documents dated January 6, 2012.
44.

Attached hereto as Exhibit 42 is a true and correct copy of the Objections and

Responses ofPlaintiffT.J. Stiles to Defendants' First Set of Requests for Admission dated
January 6, 2012.
45.

Attached hereto as Exhibit 43 is a true and correct copy of the Objections and

Responses ofPlaintiffTJ. Stiles to Defendants' Second Set ofInterrogatories and Requests for
the Production of Documents dated April 10, 2012.
46.

Attached hereto as Exhibit 44 is a true and correct copy of the Objections and

Responses of Plaintiff Fay Weldon to Defendants' First Set ofInterrogatories and Requests for
the Production of Documents dated January 12,2012.
47.

Attached hereto as Exhibit 45 is a true and correct copy of the Objections and

Responses of Plaintiff Fay Weldon to Defendants' First Set of Requests for Admission dated
January 12,2012.
48.

Attached hereto as Exhibit 46 is a true and correct copy of the Objections and

Responses of Plaintiff Fay Weldon to Defendants' Second Set ofInterrogatories and Requests
forthe Production of Documents dated April 10, 2012.

Responses from Associational Plaintiffs

7

A-1242
Case 1:11-cv-06351-HB Document 125

Filed 07/11/12 Page 8 of 16

Objections and Responses of Plaintiff The Authors Guild to Defendants' First Set of Requests
for Admission dated April 3, 2012.
51.

Attached hereto as Exhibit 49 is a true and correct copy of the Objections and

Responses of Plaintiff The Authors Guild to Defendants' Second Set ofIntcrrogatories and
Requests for the Production of Documents dated April 20,2012.
52.

Attached hereto as Exhibit 50 is a true and correct copy of the Objections and

Responses of Plaintiff The Authors' Licensing and Collecting Society to Defendants' First Set of
Interrogatories and Requests for the Production of Documents dated February 4, 2012.
53.

Attached hereto as Exhibit 51 is a true and correct copy of the Objections and

Responses ofPlaintiffThc Authors' Licensing and Collecting Society to Defendants' First Set of
Requests for Admission dated February 4,2012.
54.

Attached hereto as Exhibit 52 is a true and correct copy of the Objections and

Responses of PlaintitT The Authors' Licensing and Collecting Society to Defendants' Second Set
of Interrogatories and Requests for the Production of Documents datcd April 20, 2012.
55.

Attached hereto as Exhibit 53 is a true and correct copy of the Objections and

Responses of Plaintiff The Authors League Fund to Defendants' First Set ofInterrogatories and
Requests for the Production of Documents with Amended Schedule A dated January 25,2012.

8

A-1243
Case 1:11-cv-06351-HB Document 125

Filed 07/11/12 Page 9 of 16

Responses of Plaintiff The Authors League Fund to Defendants' Second Set ofInterrogatories
and Requests for the Production of Documents dated April 20, 2012.
58.

Attached hereto as Exhibit 56 is a true and correct copy of the Objections and

Responses of Plaintiff The Australian Society of Authors to Defendants' First Set of
Interrogatories and Requests for the Production of Documents dated February 10, 2012.
59.

Attached hereto as Exhibit 57 is a true and correct copy ofthe Objections and

Responses of Plaintiff The Australian Society of Authors to Defendants' First Set of Requests for
Admission dated February 10,2012.
60.

Attached hereto as Exhibit 58 is a true and correct copy ofthe 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.
61.

Attached hereto as Exhibit 59 is a true and correct copy of the Objections and

Responses ofPlaintiffSveriges Forfattarfcirbund (The Swedish Writers' Union) to Defendants'
First Set of Interrogatories and Requests for the Production of Documents dated January 23,
2012.
62.

Attached hereto as Exhibit 60 is a true and correct copy of the Objections and

Responses of Plaintiff Sveriges Forfattarfcirbund (The Swedish Writers' Union) to Defendants'
First Set of Requests for Admission dated January 23,2012.

9

A-1244
Case 1:11-cv-06351-HB Document 125

64.

Filed 07/11/12 Page 10 of 16

Attached hereto as Exhibit 62 is a true and correct copy ofthe Objections and

Responses ofPlaintifTNorsk Faglitter:£r Forfatter- og Oversetterforening (The Norwegian NonFiction Writers and Translators Association) to Defendants' First Set ofInterrogatories and
Requests for the Production of Documents dated January 26, 2012.
65.

Attached hereto as Exhibit 63 is a true and correct copy of the Objections and

Responses ofPlaintiffNorsk Faglitterrer Forfatter- og Oversetterforening (The Norwegian NonFiction Writers and Translators Association) to Defendants' First Set of Requests for Admission
dated January 26, 2012.
66.

Attached hereto as Exhibit 64 is a true and correct copy of the Objections and

Responses of Plaintiff Norsk Faglitterrer Forfatter- og Oversetterforening (The Norwegian NonFiction Writers and Translators Association) to Defendants' Second Set ofInterrogatories and
Requests for the Production of Documents dated April 20, 2012.
67.

Attached hereto as Exhibit 65 is a true and correct copy of the Objections and

Responses of Plaintiff The Writers' Union of Canada to Defendants' First Set ofInterrogatories
and Requests for the Production of Documents dated January 30, 2012.
68.

Attached hereto as Exhibit 66 is a true and correct copy of the Objections and

Responses of Plaintiff The Writers' Union of Canada to Ddendants' First Set of Requests tor
Admission dated January 30, 2012.

10

A-1245
Case 1:11-cv-06351-HB Document 125

Filed 07/11/12 Page 11 of 16

Responses of Plaintiff Union des Ecrivaines et des Ecrivains Quebecois (Quebec Union of
Writers) to Defendants' First Set ofInterrogatories and Requests for the Production of
Documents dated January 26, 2012.
71.

Attached hereto as Exhibit 69 is a true and correct copy of the Objections and

Responses of Plaintiff Union des Ecrivaines et des Ecrivains Quebecois (Quebec Union of
Writers) to Defendants' First Set of Requests for Admission dated January 26,2012.
72.

Attached hereto as Exhibit 70 is a true and correct copy of the Objections and

Responses of Plaintiff Union des Ecrivaines et des Ecrivains Quebecois (Quebec Union of
Writers) to Defendants' Second Set ofInterrogatories and Requests for the Production of
Documents dated April 20, 2012.

Responses from Defendants
73.

Attached hereto as Exhibit 71 is a true and correct copy of the Responses to

Plaintiffs' First Set ofInterrogatories to Defendant HathiTrust dated February 8, 2012.
74.

Attached hereto as Exhibit 72 is a true and correct copy of the Supplemental

Responses to Plaintiffs' first Set ofInterrogatories to Defendant HathiTrust dated April 9, 2012.
75.

Attached hereto as Exhibit 73 is a true and correct copy of the Responses to

Plaintiffs' First Set of Interrogatories to Defendant Mark G. Yudof (University of California)
dated February 8, 2012.

11

A-1246
Case 1:11-cv-06351-HB Document 125

Filed 07/11/12 Page 12 of 16

Plaintiffs' First Set ofInterrogatories to Defendant Mary Sue Coleman (University of Michigan)
dated February 8, 2012.
78.

Attached hereto as Exhibit 76 is a true and correct copy of the Supplemental

Responses to Plaintiffs' First Set oflnterrogatories to Defendant Mary Sue Coleman (University
of Michigan) dated April 9, 2012.
79.

Attached hereto as Exhibit 77 is a true and correct copy of the Responses to

Plaintiffs' First Requests for Admission to Defendant Mary Sue Coleman (University of
Michigan) dated February 8, 2012.
80.

Attached hereto as Exhibit 78 is a true and correct copy ofthe Responses to

Plaintiff'>' First Set oflnterrogatories to Defendant Kevin Reilly (University of Wisconsin) dated
February 8, 2012.
81.

Attached hereto as Exhibit 79 is a true and correct copy of the Responses to

Plaintiffs' First Requests for Admission to Defendant Kevin Reilly (University of Wisconsin)
dated February 8, 2012.

Google Cooperative Agreements
82.

Attached hereto as Exhibit 80 is a document entitled "Cooperative Agreement"

that was purportedly entered into by Google Inc. and the University of Michigan on or about
June 19,2005. The attached copy was produced by Google Inc. as GOOG05000355-366.

12

A-1247
Case 1:11-cv-06351-HB Document 125

84.

Filed 07/11/12 Page 13 of 16

Attached hereto as Exhibit 82 is a document entitled "Cooperative Agreement"

that was purportedly entered into by Google Inc. and the University of California on or about
August 3, 2006. The attached copy was produced by Google Inc. as GOOG05000306-318.
85.

Attached hereto as Exhibit 83 is a document entitled "Cooperative Agreement"

that was purportedly entered into by Google Inc. and the Indiana University on or about June 1,
2007. The attached copy was produced by Google Inc. as GOOG05000028-044.
86.

Attached hereto as Exhibit 84 is a document entitled "Cooperative Agreement"

that was purportedly entered into by Google Inc. and Cornell University on or about August 6,
2007. The attached copy was produced by Google Inc. as GOOG05000472-483.
87.

Attached hereto as Exhibit 85 is a document entitled "Cooperative Agreement"

that was purportedly entered into by Google Inc. and the University of Wisconsin on or about
September 22,2007. The attached copy was produced by Google Inc. as GOOG05000428-438.

Other Documents
88.

On June 28, 2012, I conducted a search for the phrase "secure cheap advertising"

on the website http://books.google.com. Attached hereto as Exhibit 86 is a true and correct copy
of a printout of the results page from that search.
89.

Attached hereto as Exhibit 87 is a true and correct copy of a document entitled
The attached copy was produced by

Defendants as UM004243-4266.

13

A-1248
Case 1:11-cv-06351-HB Document 125

Filed 07/11/12 Page 14 of 16

The attached copy was produced by Defendants as UM004282-86.
92.

Attached hereto as Exhibit 90 is a true and correct copy of a printout showing

Amazon.com's "Look Inside!" feature for the book Clean Your Room, Harvey Moon! by Pat
Cummings. This document was marked as Exhibit No. "PC 14" during the deposition of Pat
Cummings on May 22,2012.
93.

Attached hereto as Exhibit 91 is a true and correct copy ofthe Curriculum Vitae

of Paul N. Courant. This document was marked as Exhibit No. "PC 1" during the deposition of
Paul Courant on April 24, 2012.
Attached hereto as Exhibit 92 is a true and correct copy of

was produced by Defendants as UMOO 1798-1798.0 1 and was marked as Exhibit No. "PC 4"
during the deposition of Paul Courant on April 24, 2012.
95.

Attached hereto as Exhibit 93 is a true and correct copy of a
This document was produced

by Defendants as UMOO 1716-1717 and was marked as Exhibit No. "PC 8" during the deposition
of Paul Courant on April 24, 2012.
96.

Attached hereto as Exhibit 94 is a true and correct copy of a news article from the

UM website entitled "U-M Library Statement on the Orphan Works Project" dated September

14

A-1249
Case 1:11-cv-06351-HB Document 125

Filed 07/11/12 Page 15 of 16

Wilkin on April 25, 2012.
98.

Attached hereto as Exhibit 96 is a true and correct copy of a press release entitled

"Google Checks Out Library Books" dated December 14,2004. This document was marked as
Exhibit No. "JW 2" during the deposition of John Wilkin on April 25, 2012.
99.

Attached hereto as Exhibit 97 is a true and correct copy of a blog article entitled

"John Wilkin talks Google Print & Digitization." The document was marked as Exhibit No. "JW
4" during the deposition of John Wilkin on April 25, 2012.
100.

Attached hereto as Exhibit 98 is a true and correct copy of a newsletter dated

April 13,2012 from the HathiTrust website entitled "Update on March Activities." This
document was marked as Exhibit No. "PH 9" during the deposition of Peter Hirtle on April 18,
2012.
101.

Attached hereto as Exhibit 99 is a true and correct copy of the Declaration of

Daniel Clancy in Support of Motion for Final Approval of Amended Settlement Agreement.
This document was marked as Exhibit No. "3" during the deposition of Daniel Clancy on June 1,
2012.
102.

Attached hereto as Exhibit 100 is a true and correct copy of a presentation entitled

"University of California Mass Digitization Projects Update" dated May 8, 2008. This document
was marked as Exhibit No. "HC 3" during the deposition of Heather Christenson on April I I,
2012.

15

A-1250
Case 1:11-cv-06351-HB Document 125

104,

Filed 07/11/12 Page 16 of 16

Attached hereto as Exhibit 102 is a true and correct copy of an article entitled

"HathiTrust: A Research Library at Web Scale" by Heather Christenson, This document was
marked as Exhibit No. "He 5" during the deposition of Heather Christenson on April 11,2012.

105.

Attached hereto as Exhibit 103 is a true and correct copy of a printout showing

Amazon.com's "Look Inside!" feature for the book Jesse James by T.], Stiles, This document
was marked as Exhibit No. "10" during the deposition of 1'.1. Stiles on May 31,2012.
106,

Attached hereto as Exhibit 104 is a true and correct copy of a printout showing

Amazon.com's Search Inside! License dated June 18,20]2.
107,

Attached hereto as Exhibit 105 is a true and correct copy of a printout of a

screenshot from the HathiTrust website dated June 28, 2012.

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

Dated:

New York, New York
June 29, 2012

EDWARD H. ROSENTHAL

16

A-1251
Case 1:11-cv-06351-HB Document 125-1

Filed 07/11/12 Page 1 of 65

EXHIBIT 5

A-1252
Case 1:11-cv-06351-HB Document 125-1

5

TH~ AU~HORS

8

9

GUILD INC., et al.,

Plain~iffs,

6
7

Filed 07/11/12 Page 2 of 65

vs.

Ko.

11 C=-v.

HATHITRUST, et al.,
Defendants.

10
11

12

CONFIDENTIAL - ATTORNEYS EYES ONLY

13

DEPOSITIOK OF

14

HEATHER CHRISTENSON

15

Berkeley, California

16

Wednesday, April 11, 2012
17
111
:i9

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21

2"

Reported by:

24

JUDIE A. NICHOLAS, CSR NO. 12229

25

JOB NO. 48480

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Worldw~de

377-702-9580

6351

(HB)

A-1253
Case 1:11-cv-06351-HB Document 125-1

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IS
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I'm sorry. Repeat the question.

9

Q. This chart states, or represents, that

approximately 74 percent of the works in HathiTrust, and
by "work5," I mean the 8,234,081 volume, thaI were
released at that time as of March 5th, 20 II. This chart
says 74 percent are in copyright.
I'm asking you whether you know one way or the
other whether the works you sec contrihuted are roughly
the same percentage -- roughly the same percentage of
those works are in copyright.
1\. I don't know.
Q. Do you know whether it's more than 50 p!;!rcent
of the works by UC are estimated to be in copyright?
A. I would not estimate that 50 percent of the
works digitized by UC are in copyright. I mean that's

24

25

Q.

Filed 07/11/12 Page 38 of 65

digitize public domain content.
Q. If you look at the third slide from the back
entitled Changing Lihrary Landscapes. The first hullet
point says Rapidly Changing Landscape. It says,
"Libraries are making these decisions but they are more
and more collective decisions," and the tinal bullet
point says, "We cannot afford anymore to du wurk
separately that could be done collaboratively."
Do you agree with the final sentiment stated on
this presentation?
A. If I recall correctly, the slide is not my
slide.
Q. Do you knuw what's meant by this, "We cannot
afford to do work anymore separately that could be done
collaboratively"?
A My interpretation of that would he libraries
are in an environment where there's many competing
A'T

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infonnation services on the web; otherwisc, University
budgets, hard times, many facets of the environmental
situation that might indicate a call somcwhat like this.
Q. Okay. Are you familiar with the term "fair
use" as it applies to copyright law?
A. I'm familiar that there's a provision in law
called fair use, yes.
Q. Have you ever reviewed that provision?
A. Yes, I have.
Q. Actually -- could I have Tab 9.
(Exhibit No. HC6 marked for
identification. )
Okay, what I've marked as HC6 IS what I'll
represent is a printout of Section 17 U .S.C.A. § 107,
which is the Fair Use Provision in the Copyright Act.
I guess my question is this. In connection
with the selection of books as part of the Mass
Digitizatloll Proj!;!ct with Guugl!;!, did yuu ever consider
the -- did you ever consider fair use as it's set forth
in this statute at that time?
MR. POTTER: I'm going to object to the extent
it calls for a legal conclusion, and she's not at
lawyer.
MR GOLDMAN: Q. Yeah, and without -- yes.
THE WITNESS: As I stated before, when J was

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charged with carrying out thcse projects, it's according
to a contract, and I assume that there's legal input
into contracts at the University of California. And I'm
not a lawyer.
Q. But in connection with either the bulk pulls
that were done or the candidate list method of selecting
books for digitization, are you aware of any -- are you
aware of any discussions that took place regarding any
of the factors of fair use that are set forth in this
provisiun'?
MR raTTER: To the extent those discussions
involve lawyers -MR. GOLDMA'.l: It's a yes-or-no question.
Yes-or-no question.
THE WITNESS: I don't know, but I'd have tu
assume that UC discllssed with legal counsel.
MR. GOLDMA'.l: Q. I'm not asking for
assllmptions. Are you aware of any such discussions?
A. '.lot that I can recall hcre today.
Q. With respect to any work that was digitized by
Google that came ii'olll an UC library With respect to any
particular work, are you aware whether any person at any
time made an analysis regarding any of these four
factors that are listed here in the statute?
And let me just say. for example, when any

Worldw~de

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aware whether a determination was made regarding the
nature of the copyrighted work that was chosen for
digitintion?
A. No.
Q. And what about the amount and substantiality of
the portion used in relation to the copyrighted work as
a whole, arc you aware of any analysis made of that
factor at that point in time'?
MR. POTTER: I'm going to object to this line
of questioning to the ,xtent it could call for legal
conclusions what these various factors might mean.
MR. GOLDMAN: Q. Yes or no?
A. Can you repeat the question?
THE REPORTER: Question: "And what about the
amount and substantiality of the portion used in
relation to the copyrighted work as a whole, are you
aware of any analysis made of that factor at that

9

o

L ...

L

'-0 ..... ............ J ....

k~.

Q. rm not asking for a legal analysis, I'm asking
whether or not, yes or no, you're aware there was an
analysis done at that timc"
MR. POTTER: Clarification. Are you asking if
she's aware that someone contemplated Fair Usc Factor 3,
whether she knews what that means er not, or is she
aware that someone contemplated what she understands
that factor to mean'?
MR. GOLDMAN: Q. r am asking -- I'm definitely
not asking whal her understanding of that provision is
as a legal matter. I'm asking whether, just as r asked
with the other cwo, at the point of -- at the point when
a particular work was selected for dlgitization, are you
aware whether anyone considered any of these four
factors, and I'm going through each of the three
factors.
aware
We're now on the third one. Are
"'"':~O"~U~"~U'"'M~

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whether anyone every considered the amount and
substantiality of the portion used in relation to the
copyrighted work as a whole?
A. Not that r can recall.
Q. And do you recall -- do you know whether anyone
at that point in time considert'd the etTcet of the use
upon the potential market for or value of the
copyrighted workry
A. Can yeu rephrase the question?
Q. Are you aware whether -- are you aware whether
anyone at Ul', you, yourself or anyone else, considered
at the point in time when any work that was digitized by
Google ofUe works, whether any person ever considered
at that time the effect of the use upon the potential
market for or value oflhe copyrighted work"
A. ['m still contllsed. [('s legal temlS. [3m
not in the mind of people who are pulling books from the
shelves. so -- I could only say that I can't recall -Q. You were the one managing the pulling of the
books from the shelves. correct"
A. No.
Q. Who managed the pulling of the books from the
shelves?
A. [II -- for cacll proJect there's a specific
person who handkd that role. or persons.

2

5
6
7

Q. Are you aware whether any people that were
selecting the books from the shelves, or at any point up
the chain, people that selected the books, people that
supervised the selection of books, anyone at Google,
anyone, anyone in the whole world, whether they
detennined at that time, are you aware whether anyone
made a consideration of any of those four factors that
we went through at any point in time when the books were
selected for digitization?
A. I'm still not certain I entirely understand the
question, but 1 don't see how I could be aware of ali
those individual people's thought processes, so I would
say no.
That's my answer.
Q. There came a time when University of Michigan
announced the launch of something called the Orphan
Works Project. !lave you ever heard of the Orphan Works
Project before?
A. Yes.

Q. What is the Orphan Works Project, to the best
or your undt:rstanding?
A. The best of my understanding, the University of
Michigan was going to develop a research process to look
at works or books, volumes, to try to further
ini,lmlation on whether or not --

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38

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A. Yes.
Q. Who was involved with the decision -- who made
the decision to participate in the Orphan Works Project?
A. I don't know who made -- I don't know is the
answer.
Q. Did you have any discussions with anyone
about -- prior to joining the Orphan Works program or
prior to announcing CC's intent to joining the Orphan
Works program, did you have any discussion ahout the
Orphan Works program?
A. I don't specifically recalL I may have been
in discussions where it was mentioned.
Q. And what were the nalure of those discussions?
MR. POTTER: To the extent counsel was present.
I'll instruct you not to reveal the substance of the
conversations.
THE WITKESS: There arc HathiTmst project

17
18

19
20

university Iihrarian at 1 Ie rA provided assistance in
refining the process. Do you know who that associate
university librarian at UCLA to be that participated in
refining the process at University of Michigan?
A. r don't have knowledge of what mayor may not
have been contnbuted. A person who was a candidate for
that was Sharon Farb.
Q. Did you have any discussions with Sharon Farb
regarding that process being us cd by the University of
Michigan"
A I don't recall.
Q. Do you know how -- pati of the Orphan Works
Project involved the creation of a list of orphan
candidates; is that right"
A. I don't know the specifics of the process.
Q. Are you aware that certain of the works lhat
wcrc working candidates were works that originated from

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UC libraries?
A. Yes.
Q. Were you involved in any discussions regarding
the designation ofUC digitized works as orphan
candidates?
A. Not that! can recall.
Q. How did you become aware that UC digitized
works were being designated as orphan candidates?
A. T can't recalL ft may have been through the
lawsuit. Through the lawsuit.
MR. POTTER: Can you wrap it up in about five
so shc can pick up her children?
MR. GOLDMA'\T: Yeah.
Oh, Sigh.
Okay. Let's take a minute break, just a
minute, so I can go over my notes and talk to counseL
(A break was taken.)

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MR. GOLDMA'\T: No further questions.
Do you have any questions?
MR. POTTER: No. I appreciate that. I think
we're good.
(Time noted: 4:00 p.m.)
--000--

HEATHER CHRISTENSON

Subscribed and sworn to before me this
of
.2012.

day

"I
1/1
"I

iii

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/ /I

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877-7C2-9580

39

A-1256
Case 1:11-cv-06351-HB Document 125-2

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EXHIBIT 6

A-1257
Case 1:11-cv-06351-HB Document 125-2

5

THE AUTHORS GUILD,

INC., et al.,

6

Plaintiffs,
vs.

8

Filed 07/11/12 Page 2 of 87

Case No. 11 Civ.

6351

(HB)

9

10
11

HATHITRUST, et al.,
Defendants.

12

The Deposition of PAUL COURANT,
Taken at 503 Thompson

S~reet,

li

Fleming Administration Building, Room 5021-503,

18

Ann Arbor, Michigan,

19

Commencing at 9:28 a.m.,

2C

Tuesday, April 24, 2012,

21

Before Kathryn L. Janes, CSR-3447, RMR, RPR.

22

TSG Job # 48910

23
24

TSG Reportirq - Worldwide

877-702-9588

A-1258
Case 1:11-cv-06351-HB Document 125-2

0

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Let me state it more precisely.
11
Okay.
12
Yes, and also for two of the other libraries -13
Right.
14
-- that I'm not currently responsible for.
15
Do -- at the time you were a provost and
executive vice president for academic affairs,
were the budget -- were the budgets for all of
the libraries that you were responsible for under
118
19
one line item in an overall budget?
20
A. So almost certainly, no. Let's try another
21
version of the question.
Q. What I'm getting to, just to cut through it, to
""~
the extent you know, do you know what percentage 23
of the overall UniverslfY of Michigan general
124

A.
Q.
A.
Q.
A.
Q.

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PAUL COURANT
time?
BY MR. ROSENTHAL:
Q. Well, did you know it at that time?
A. I'm so -- let me be careful again, when yon say
the libraries, what set of organizations are you
reft;rring to?
Q. I'm talking about the libraries for which you
werc responsible in the position of provost and
executive vice president?
A. So including tht; Bentley and the Clements?
Q. Including the Bentley and Clements.
A. As provost, bndgeting thc general fund, I budgeted
to the entities that I budgeted to, so I treated
separately in my mind the Clements, the Bentley
and the University LibralY, and indeed the
Clements and the Bentley were under the
approximate oversight of an associate provost
because they're relatively small. So I -- I do
not rf;;call Wilh any -- anything, with even
speculative provision what the general fund
budgets of those two -Q. How about for the University Library?
A. I can make an approximate framing of what those
numbers would have been.

TSG ?epo,-ting

-

Filed 07/11/12 Page 8 of 87

at it that way.

Q. Do you today have a recollection of what that
aritlunetic calculation would be?
A. Not with any precision.
Q. Even -- even roughly,)
A. So I -- I -- I could try to make a guess at what
the calculation would have been, but [ didn't -the budgeting was not in essence done with -- with
the percentage as an interesting number, so it's
not a number I kept track of.
Q. Do you know in terms of the budget for the
general -- the general fund budget for the
libraries as a whole what that number was at the
time you were provost and executive vice
president for academic affairs'!
MR. PETERSEN: Did he know it at that

Fage 2':>

1

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3

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PAUL COURANT

Q. Please do.
A. The general fund budget of the University Library

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at the time that I was provost would have ranged
from the low 40 millions to the either high 40
millions or low 50s.
And that range -- that range would encompass the
period that you were provost and executive vice
president for academic atlairs?
Yes.
And do you know what the budget for the
University libraries is today for 20 II Ict's say?
I do approximately, but the units that arc in the
purview ufthe library have changed.
Okay.
And in particular the -- an entity that IS called
the Digital 'v1edia Commons was added to the library
several years ago and that addition came with it
several million dollars a year and so the figures
are not strictly comparable.
SO what is the current budget of the Ul1lversity
fjbrary?
Again, I'm going to be -- cover a range here,
it's -- it's more than $50 million a year and less
than $55 million a year.

llll-7C2-l)S20

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A-1259
Case 1:11-cv-06351-HB Document 125-2

1:)

Q. Who is John Wilkin?

A. He's the associate university librarian for
infonnation -- the library infonnation tedmology
and the executive director of the HathiTrust,
H-A-T-H-J-T-R-U-S-T.
Q. And are those two separation positions?
A. Yes.
Q. And do you know how long he's held those two
positions, either or both"
A. J do not know how long he has been associate
university librarian. He was in that role when I
came to the library. He's been executive director
of the HathiTrust since there was such a pcrson,
which is a little less than tour years.
Q. Does Mr. -- is he Dr. Wilkin?
A. No. I don't think so.

Filed 07/11/12 Page 9 of 87

Q. Do you supervise his work in that role?
MR. PETERSEN: Objection to fonn.
A. I'm broadly aware of his work in that role. We
talk about it.
BY MR. ROSENTHAL:
Q. I'll get back to Mr. Wilkin.
Do you know what the size of the
general fund budget overall for the University of
Michigan was at the time you were provost"
MR. PETERSEN: I believe wasn't this
asked and answered?
MR. ROSENTHAL: I covered this, I asked
about the library budget, hut not the overall
budget.
A. Do I know now?
BY MR. ROSENTHAL:

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PAUL COURANT
Yes.
Not with any precision.
Did you know then?
Yes.
But you don't recall what it was?
Not with any precision.
What about generally?
I'm trying to rcmemher. r was in that position
for four years and it changed. Somewhat more than
a billion dollars, letis than two, but I don't want
to speculate with any precision.
Q And what is the size of the University of
Michigan general fund budget today for say 20 II?
A. Somewhat more than it was when T left the job.
Q. More than $2 billion?
A. No, J don't think so. but I would have to check to
he sure.
MR. ROSENTHAL: Could we just take a
break for a minute?
MR. PETERSEN: Sure.
(Recess taken at 10:04 a.m.)
(Rack on the record at 10: 11 a.m.)
BY MR. ROSENTHAL
Q. Dr. Courant, did there come a time when you
Q.
A.
Q.
A.
Q.
A.
Q.
A.

TSG

ReForti~g

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PAUL COURANT
became aware of any digitizatlOn programs takIllg
place at the Cniversity of MIchigan with respect
to books?
MR. PETERSEN: Objection to fonn,
objection to no definition j()r programs.
A. Yes, and just that passive fOfm became aware of.
BY MR. ROSENTHAL:
Q. When did you become aware of any digitization of
books by University of Michigan?
A. Probably sometl1ne in the 19S0s. Certainly by the
early 1990s.
Q. And do you recall the positions you held at the
time you became aware of digitization of books at
the University of Michigan')
A. I was -- not specifically, throughout all of these
times I was a professor. I\s chair of the
economics department, and r can't -- I could look
up on my CV and find out when I was that, I wa~
responsible for a small departmental library. One
of those libraries that the University Library is
not responsible for, and we had some conversations
about. you know, how to manage that collection
which include digitizatiun uf tiumc uld works and
public domain works.

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Case 1:11-cv-06351-HB Document 125-2

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testifying about today paying any of the costs of
this litigation,)
MR. PETERSEN Objection to tom1.
BY MR. ROSENTHAL:
Q. If you know?
A. I don't know. Not to my knowledge.
Q. Okay. And did -- do you know whether the
University of Michigan has indemnified any of the
other universities that arc part of the
HathiTflIst with respect to any costs or expenses
of this litigation?
MR, PETERSEN: Objection to form,
objection, lacks foundation and objection, vague.
A. And I don't know.
MR. ROSENTHAL: Let's take a few
minutes.

Filed 07/11/12 Page 37 of 87

A.

I always refer to it as the Orphan Works Project,
it may be the Orphan Works Program.
BY '-'JR. ROSENTHAL:
Q. Okay. Well, let's call it the Orphan Works
Project.
A. It's an effort within the University of Michigan
Library to identify the orphan works and make
orphan works that are in the University of
Michigan's collections available in a highly
limited way to members of the university
community.
Q. Is this effort -- is the Orphan Works Project
that you've described an effort solely by the
University of Michigan?
'-'IR. PETERSEN: Objection to form.
BY MR. ROSET\TIlAL:

Page

Page 141

PAUL COURANT
Q. Or does it involve other entities'!
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PAUL COURANT

Q. And what's the basis of your description of what

MR. PETERSEN: Same objection.
A, Other universities have indicated an interest in
participating. The Orphan "lorks Project that I'm
familiar with is at the University of Michigan.
BY MR. ROSENTHAL:
Q. And when you testified that the effort was to
identify orphan works in the University of
Michigan collection, do you mean works where
there's a physical copy in the University of
Michigan collection?
MR. PETERSEK Objection to form.
A. Yes.
BY MR. ROSENTHAL:
Q. And can you briefly tell me what an orphan work
is')

3
:J
r;

7

MR. PETERSEN: Objection to fom1.
A. It's a term of some discussion, but in simple
form. these are works that are III copyright or at
least unable to be identitied as not being in
copyright, and where a right's holder cannot be
found and whcre there's not an active market for
new copies of the work.
BY MR. ROSENTHAL

TSG Repcrtjng -

~nrldwide

an orphan work is'!
MR. PETERSEN: Objection to form. And
objection to the extent it calls for divulging
privileged information.
So if you can answer without divulging
attomey-client privileged information, you may do
so, but only Il1 that casco
A. So the simpler, the part that doesn't implicate
any attorney-client privilege or legal
interpretation is a work that is again -- that is
not established as being in the public domain and
which therefore could be in copyright, that is,
where a right's owner cannot be found. And
that's, I think, most definitions will say
approximately thal.
BY MR. ROSENTHAL:
Q. Most definitions from where?
A. The community of people who talk about such things
as orphan works.
Q. When did the University of Michigan decide to
engage in the Orphan Works Project?
MR PETERSEN: Ohjection to fOrnl.
A. In the months following Judge Chin's rejection of

877-7C2-:J580

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Case 1:11-cv-06351-HB Document 125-2

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A. The failure of the settlement 10 go through
involved per force the failure of what would have
been a very effective solutIon to the orphan works
problem, and the orphan works problem is that
there are many works, plausibly millions, that are
in this status where they are nol known not to be
in copyright and the right's holder can't be found
and therefore the works are not available to be
used electronically, even though there would be -~9
could be no ham1 to a right's holder, if a right's
holder really can't be found associated with
0
making uses of the works.
~1
And the orphaned -- the amended
~2
settlement and its predecessor, lhe unamended
3
settlement, would have made It possible for Google !:2 4
to develop with the Book Rights Registry and the
~5

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Filed 07/11/12 Page 38 of 87

of that project, that Google product that was
being contemplated would have enabled others to
usc it a~ well, and thereby get the, you know, the
benefit of being able to read works lhat otherwise
are harder to tind, haTder to use than either very
old works, which are in the public domain or
current works which typically have digital
licenses that make them easy 10 use licenses for
which, of course, universIties and other users
pay.
And when settlement didn't go through,
that avenue for making these works useable was
blocked orr and we asked ourselves the question,
is there some way we can get some benefit out of
the -- out of these works for digital uses.
BY MR. ROSENTHAL:

;:;:';~~ j'"
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PAUL COURANT
Q. You described in that answer, you described under
the settlement and I'm paraphrasing, but under
the settlement, the amended settlement, orphan
works could be used without the negative
consequences that othelwise would occur, what did
you mean by negative?
A. Otherwise might occur, so-Q. What did you mean by negative consequences?
A. Well-MR. PETERSEN: Let me just note my
objection to form on that question, please.
A. What I meant was that as things stand now, were an
entity -- were Google, for example, to create a
project in which they made available orphan works
on the web, they would be subject if somebody
happened to -- if they made a mistake in coding,
to potentially severe monetary penalties, so that
is a risk thalllcither they nor anyone else would
lake.
BY MR. ROSEl':THAL:
Q. But University of Michigan has developed its own
Orphan Works Program, correct?
'vIR PETERSEN: Objection to form.
A. The Umversity -- yes, the University of Michigan

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?age 145
PAUL COlJRANT
has developed its own Orphan Works Program.
BY MR. ROSENTHAL:
Q. And how does that program differ than the program
that was contemplated by the amended settlement?
YlR. PETERSEN: Objection to form.
A. It was produced by an acal.kmic nonprofit for
entirely noncommercial purposes and the only
entities that would have had the works available
under the Michigan project would have been
authorized authenticated users ofUnivl:rsity of
Michigan Library services, exactly the same
population that has access to the underlying print
work.
MR. ROSENTHAL: Could you just read
that back, the last answer back. Thank you.
(The tollowing record was read by
the reporter at 2:21 p.m.:
"ANSWER: It was produced by an
academic nonprofit for entirely
noncommercial purposes and the only
entities that would have had the
works available under the Michigan
project would have been authorized
authenticated users orUniversity

877-702-9580

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Case 1:11-cv-06351-HB Document 125-2

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ft's a very long list of people, there's
probably -- there's tens of thousands of them.
BY MR. ROSENTHAL:
Q. Well, I wasn't asking for their names.
A. Oh. okay.
Q. Unless you know them?
A. I know some of them.
Q. Well, let's do it through categories.
A. Students, currently registered students, faculty,
staff, and people who walk into library
facilities.
Q. With respect to the last group, people who walk
into library facilities, arc -- can anyone walk
into a University of Michigan library and use
that library's facilities?
YlR. PETERSEN: Objection to form.

Page 148
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PAUL COURANT
would -- in your list o[ various authorized users
of University of Michigan services, would that
include people who walked into a facility in
Florence, Italy?
MR. PETERSEN: Objection to form,
objection, lacks foundation. You haven't -A. I would be very surprised if it did include such
people.
BY MR. ROSENTHAL:
Q. Ifitdid?
A. If it did indude.
Q. Okay. Do you know whether Judge Chin addressed
the issue of orphan works in his rejection of the
amendl:d seulemcnt?
MR. PETERSEN: Objection, lacks
foundation, objection, calls for a legal
conclusion.
A. I don't know. he called for an opt in schtme which
pretty much makes the orphan works problem not go
away, but I don't know that he specifically
addressed orphan works by name.
BY MR. ROSENTHAL
Q. Or by substance')
MR. PETERSEN: Objection to form.

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Filed 07/11/12 Page 39 of 87

there is a small library in Florence. Italy, but
that's covered by a whole ditTerent bunch of
rules, if there is a library there, and I don't
know if there', a library in the chief geological
camp or not.
Q. When: is the chief geological camp?
A. The geological -- I didn't mean chief, I just
stuttered. The geological camp is in Wyoming.
Q. )\jow, you may not know this, you described -- you
said the entity in Florence to the extent it
exists was under a different bunch of rules. do
you know whether people with -- who walk into
the -- that facility in Florence. Italy would be
able to access -- strik..: that whole thing, let me
back up.

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PAUL COURANT
A. I don't know specifically.
BY MR. ROSENTHAL:
Q. Have you read the Judge Chin's decision rejecting
the amended settlement a~,'Teement?
A. I have, but some time ago.
Q. You just don't remember"
A. Yeah.
Q. Do you know whether, do you recall whether Judge
Chin mentioned that the -- in that decision that
the question of orphan works is best left to
Congress?
MR. PETERSEN: Objection to form,
objection, calls for a legal conclusion. objection
to the extent it would call for the witness to
testify based upon privileged conversations and
discussions with counsel.
A. What you say sounds familiar, but I don't recall
in detail.
BY MR. ROSENTHAL:
Q. Do you recall any discussions with anyone other
than counsel on the substance of which was that
since tht: amended seUlemcnt agreement was not
going to go forward, the Umvcrsity of Ylichigan
would take matters into its own hands and eome up

877-702-9530

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Case 1:11-cv-06351-HB Document 125-2

10

published between 1923 and 1960 something, the
something being important in copyright law, but I
forget the date, but the people who arc doing the
pruject did know the right date, to -- that
were -- that were not established to be already in
the public domain or authorized for use by the
University of Michigan by a right's huldt:r, for
digital use by a right's holder, the project would
first go and see if the work were for sale new in
a variety ofplaees where you might find such, and
if so, that's that, it's not an orphan, And then
go to the publisher to see if the publisher is
still in business, If the publisher is still in
business, actually the work would go -- and list
of works that were published by publishers that
wert: still in business, those might or might not

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Filed 07/11/12 Page 41 of 87

renewed,
And then a second reviewer would go
through the same set of steps and ifboth found
that a work was not found or kicked out through
one of these processes, that work would be deemed
to be a prospective orphan and would be -- its
bibliographic information would he posted on a
website, that information trumpeted around on the
web in the literature, and after a period of90
days in the design VerSlOl1, the work would be
deemed to be an orphan, and made available, one
digital copy per copy that we had bought in print
form to authorize the authenticated users of the
Cniversity ofMiehigan Library, That last stage
never happened, so there we are,
Q. You said you were responsible for the overall

Page 1561
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PAUL COURANT
1
2
architccture, but not the details?
3
That's right
4
Is what you just described, what you would calI
the overall architecture?
5
6
It has some details in it
7
Whu was responsible for the details?
The project was undertaken under the supervision
8
of John Wilkin, The person who was most directly
9
responsible was Melissa Levine,
Who is Melissa Levine?
She's a member of the library's staff She is the
~2
head oftbe copyright office,
~3
Head of the copyright office?
~4
We have an office in the library that provides
~5
information about -- about copyright Issues,
not -- does not practice law, does not give
specific advice to faculty, to pcople in tbe
lihrary, so,
~9
Is Melissa levine a lawyer?
~O
She is. She actually used to work for the
Register of Copyrights and the Library of
Congress,
;23
You described that if both reviewers found a work
to be a prospective orphan, the bibliographic

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A.
Q.

A,

Q.
A,

Q,
A,

Q,
A,

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PAUL COURANT
information with respect to that work would bc
published on a website, what website would that
be?
We're now intu tht: details that I don't know,
And you also used the phrase, and I believe I
have this COITect, trumpeted around on the web
and in the literature, what did you mean by that?
\Vhat I meant was we had, as an integral pal1 of
the project the Idea that we would be public,
transparent, try to get as many people looking at
these works as possible in order to -- in order to
find out as much as we could find out
Did you know how that was going to be done?
Did I know in detail how that was going to be
done?
Yeah.
No,
How about generally?
As I think r just said, tnlmpctcd about on the web
in relevant places.
Was there going to be a public relatiuns or press
agency retained in order to trumpet this
IIltormation around on the web')
MR. PETERSEN: Object, note my

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Filed 07/11/12 Page 42 of 87

proceeding with the Orphan Work Project, correct"
A. We suspended work in the project, that's right.
Q. And why did you suspend work in the Orphan Works
Project?
A. Because we had leal ned that a number of the
prospective works, two or three, were not orphan
works and we made the judgment that -- that our
process in not tlnding those wurks as being out of
tht! project was clearly not working as well as our
standards would require.
Q. Have you implemented changes in the process since
then?
A. We have been experimenting with changes in the
process since then, yes.
Q. What changes in the process have you experimented
with?

people, we talked to publishers, we actually
talked to the Authors Guild. We talked to lots of
people about this.
Q. Did you engage in any paid advertising or
promotion of the Orphan Works Project?
MR. PETERSEN: Objection tu form.
A. I dun't belien: we did, however we -- it is
something we have certainly considered as we go
forward.
BY MR. ROSENTHAL:
Q. Does the University of Michigan intend to go
forward WIth the Orphan Works Projcct~
MR. PETERSEN: Objection to fonn.
A. The University of Michigan intends to gu furward
identifying prospective orphan works and trying to
make that a reliable process.

?3.ge 161

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A. Bringing in more people to look, more experienced
librarians or people from other places, other
universities taking independent looks at the same
works in an effort to get really reliable
agreement.
Q. Is that what you described, something that you've
contemplated doing or that you're actually doing
now?
A. Oh, we'rt: working on that now.
Q. You're actually having people from other
universities involved in evaluating works to
detennine whether they're orphan works or orphan
work candidates?
A. Orphan work candidates.
Q. Which other university?
A. UCLA. I don't know if there are others.
Q. And does the University of Michigan have any
current specilk plans to reinstate the Orphan
Works Projece
MR. PETERSFN: Objection to fonn,
vague.
1\. I don't know what -BY MR. ROSENTHAL:
Q. In other words, 15 there--

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l\'ot only objection, vague, hut vague.
Q. SO in other words, it's not only your lawyer
saying it, it's actually -A. I actually don't understand the question.
Q. Are there any -- are there any current plans to
list additional works as orphan works candidates
on the -- on a website ur in some other location'!
A. I expect that we will list candidate orphan works
on a website and plausibly other locations.
Q. Do you have any specific timetable for doing
that'!
A. Nu.
Q. Do you have any sense as to when you might start
doing that"
MR. PETERSEN: Objection to fonn,
objection, asked and answered.
A. Really no.
BY 'vIR. ROSENTHAL:
Q. And arc there any -- do you contemplate any
changes in the -- in the categories uf works that
you wil! consider for inclusion as orphan works
candidates"
MR. PETERSEl\: Objection to fonn.
BY MR. ROSFNTHAL:
A

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Case 1:11-cv-06351-HB Document 125-2

Q. And you said between 1923 and 1960 something?
o
1
A. Yes.
Q. r gave away the year, sorry.
?
A. So I would expect that that would continue to be
3
4
the broad class from which we would -- we would -5
where we would look.
Q. Do you know which two to three prospective works
6
7
that were listed as orphan works candidates
8
turned out not to be orphan works?
9
A. You know, there was one by somebudy named
Salamanca, and I can't remember the other.
Q. How did you learn that there were situations
ILl
where works listed as orphan works candidates
~2
were not actually orphan works?
MR. PETERSEN: Objection to form, and
objection to the extent it calls for privi leged
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Filed 07/11/12 Page 43 of 87

A. Tmmpeted about.
Q. SO and your recollection is there were only two
or three such works?
A. That is my recollection, yes.
Q. Now, under the Orphan Works Project, as you
contemplated implementing it once -- once a work
was listed as an orphan works candidate and ifno
copyright owner came forward, that work J believe
you testified would be made available in the
limited sense that you described to the limited
universe of users that you described?
MR. PETERSEN: Objection to form,
objection -- at what puint in lime, contemplated
at what point in time?
BY MR. ROSENTHAL:
work was
Q. Like in other words, once if a

I

PAUL COURANT
listed as an urphan work candidate posted 011 the
website and no owner came forward, then that
particular work would he made available to the
limited group of users you described earlier; is
that currect?
MR. PETERSEK Same objection and same
question about the timing issues that you're
referring to.
BY MR. ROSE~'HHAL:
Q. Made available after -- would be made
available -'JR. PETERSEN: I guess my objection
goes to what point, contemplated when.
contemplated at the time, the summer when the list
was -BY MR. ROSENTHAL:
Q. Contemplated at the time that you were -- at the
time that the University of Michigan posted
certam works on the website as orphan works
candidates, at that point it was -- r believe
your testimony -- am T correct that your
testimony is that ifno owner came forward, then
that particular -- after a certam penod of
time, that particular work would be made

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PAUL COURANT
available to a limited set of users under the
limited conditions that you described?
MR. PETERSEt\: As the Orphan Works
Project was contemplated -MR. ROSENTHAL Yes.
MR. PETERSEN: -- at that time?
MR. ROSENTHAL Y<:5.
A. The answer to the question is no. It would
absolutely not require that a right's holder come
fOf\vard. Any persuasive infonnation to the effcct
that rights were held by somebody would have been
sufficient to strike the work from the lis!.
BY MR. ROSLNnlAL
Q. But if nobody came forward to strike the work
from the list. then that work would be made
available to the limited universe of users under
the conditions you described?
A. fhat was (he original plan
Q. Right. And if, let's say one of the categories
of users was a person who walked inlo a
University of Michigan library, correct, that
person could then access one of the works that
had been listed as an orphan works candidatc~)
A. So we're in the sort of triple subjunctive here.

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BY MR. ROSENTHAL
Q. Did you discuss with any person at any other
university whether any other universiry would
participate in the Orphan Works Project"
MR. PI::TERSEN: I'm going to object to
form on that. And to the extent it calls for a
yes or no answer, it wouldn't seem to be
appropriate, but I just caution the witness not to
divulge attomey-client privileged information.
A. We had conversation -- I certainly had
conversations, I'm sure others did, with personnel
in other universities ,aying that we thought that
this was -- this was something that we wanted to
do and that we'd be pleased if others would think
about it too.
BY MR, ROSE;"!THAL

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Filed 07/11/12 Page 45 of 87

Q. Arc you aware of any other library that had

contemplated an orphan works project similar to
the University of Michigan's Orphan Works
Project?
MR. PETERSEN: Objection to form.
A. Not by name.
BY MR. ROSENTHAL:
Q. But you believe there were some contemplating it?
A. r believe people were thinking about it, yes.
Q. Did any of the people you spoke with at any of
the other universities tell YOll that they did not
WIsh to engage in an orphan works project"
MR. PETERSE'I: Objection to foml.
A. Almost certainly, but I have no specific
recollection.
BY MR. ROSENTHAL:
Page 173

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PAUL COURANT
Almost certainly people told you, and without
disclosing any attomey-client infonnation, did
any of them tell you why they did not want to
engage in an orphan works project?
MR. PETERSEN: ['m going to object and
instruction is to the extent it calls for
divulging attorney-client privileged infotmatlOn,
instruct the witness not to respond to that.
Rut, ccrtainly, Dr. Courant, if you can
answer without divulging attorney-client
privileged infom1atiun, please do so.
A. You know, Tjust don't have any -- I don't have
any specific instances in mind, so no.
MR. ROSENTHAL: Let's mark as PC9 a
one-page document that has a title U-M Library
Statement OIl the Orphan Works Project and it's
dated September 16, 2011.
MARKED FOR TDENTIFTC A nON:
DEPOSITION EXHIBIT PC9
3:23 p.m.
A. Yes.
BY MR ROSENTlIAL:
Q. Are you familiar with this document?
A. I am.

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PAUL COURA'IT
Q. Were you involved in neating it"
A. Yes.
Q. Did you write if'
A. [certainly am responsible for some words and
phrases in it. I don't know that I author~d it
from top to bottom.
Q Reading the first sentence which is: The close
Jnd welcome scrutiny of the list of potential
orphan works has r~v~aled a number of errors,
some ofthem serious, what errors are YOll
referring to"
A. Errors in that we classified as prospective
orphans works that really shouldn't have gotten
that far in the process.
Q. And are any of those errors something other than
the three instances that you describcd
previously"
A. They are -- I don't believe so, maybe there were
four, but it's a small number, but ones -- there
were a couple where it, you know, it should have
been -- should have been easier to tell that Ihal
work was not an orphan.
Q. And when you say a number of errors, som.: oflhem
serious, what do you mean by the phrase some of

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Hi
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of this document0
I believe that I do. So serious in this case, it
was again a misclassifying as an orphan -- as a -nut as an urphan, as a prospective urphan, a wurk
where it would have been relatively easy to
establish that it wasn't, Thcn there were also
small errors.
Do you know, do you have any recollection as to
which works -- with respect to which works it
would havc been relatively casy to establish that
they were not orphan works?
You know, I really, again, there's this une by
Salamanca that everybody keeps remembering, but I
don't specifically remcmber the others.
Do you know what wasn't done that should have -that should have or (:Ould have been done easily?
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PAUL COURANT
the Authors Guild and the couple of publishers'
organizations was something we always wanted.
When you say discussing with the Authors Guild
and a couple of publishing organizations, can you
tell me what you mean by that?
Yeah, we had scheduled a meeting in Ann Arbor for
approximately a couple of weeks after the date of
this sct of evcnts in which wc had invited and
indeed have had positive responses from the
American Association of Publishers, the American
Association o[Univcrsity Presses and the Authors
Guild CounCIL to come down to Ann Arbor and talk
about how to organize a project like this so it
would work well, we were looking forward to that
meeting.
By the tlIne you had scheduled this meeting, you
already had published a list of -- at least one
list of prospective orphan works, correct?
That's correct.
And do you recall when those works were going to
be made available if no one stepped forward to
object to their status as orphan works')
MR. PETERSEN Ohjection to form.
If no one stepped forward or other amendments in

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Filed 07/11/12 Page 46 of 87

Q. Or Melissa Devine -- Levine, sorry0
A. Levine, she might.
Q. When -- in the final paragraph this document
reads: It was always our belief that we would be
more likely to succeed with the cooperation and
assistance of authors and publishers. This turns
out to be correct. Do you know what that phrase
means?
A. Well, yes, the Authors Guild constructively found
errors and that was helpful. And I'm not sure
when we wrote this. Well, and we had -- having
lots of people, people who were expert in the
matters of concern, help implement the process
which was to say in this instance look at the
works that had been listed, and also helped design
lhe process which we had been discussing with both

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the program weren't made, sometime in mid October,
r think.
BY MR. ROSENTHAL:
Q. And did, in fact, the meeting that YOll described
ever take place'>
A. Without the participation of the Authors Guild,
yes.
Q. SO the American Association of Publishers and the
American Association of University Presses met
with the University ofMiehigan or met with whom?
A. M<:t with ,talI in the University of Michigan
Library who were involved with -- interested in
the Orphans Work Project, and also -- the room was
full ofiawyers, so ours was probably there too.
Q. In this case it's not -- presumably not a
privileged meeting, so were you at that mcetmg'i
A. Yes.
Q. Can you-A. I was there for part of that meeting, not the
whole meeting.
Q. Can you describe what happened at the pan of the
meeting that you attended?
A. A full and frank exchange of ideas. We talked
about what we were trying to accomplish and we

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EXHIBIT 8

A-1269
Case 1:11-cv-06351-HB Document 125-4

IM~

GUILD,

AUlrtUK~

INC.,

Filed 07/11/12 Page 2 of 92

~~

AL. ,
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Plaintiffs,
Index No.
11 Civ. 6351

7

vs.
8

HATHITRUST, ct al.,
9

::.c

Defendants.
------------------------------)

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**CO~FIDENTIAL

- ATTORNEYS' EYES ONLY**

16

DEPOSITION OJ:<' PETER HIRTLE

17

New York, New York

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Wednesday, April 18, 2012

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Reported by:
24
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THOMAS A. FERNICOLA, RPR
,JOB NO. 48688
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Rep~rting

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commurucauons WHn counsel.
A. And I conveyed my recommendation to
the University librarian.
Q. And did you have -- what did you tell
the University librarian?
MR. POTTER: Again, I'll ask you not
to real the substance of legal
communications to the -A. I reconullended that Cornell should
join the Orphan Works project.
Q. And did you say why you believed so?
A. Yes.
Q. What were your reasons why?
A. I felt that the project accorded with
the mission and goals of the University
library.
Q. And what were those mission and
.Boals?
Pa<Je 278

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P. Hitile
page, it says -- in a footnote it says,
"Revised for use by Cornell University from the
Checklist for fair Use, a project ofthc IUPUJ
Copyright Management Center."
Have you ever seen this document
before?
A. Yes.
Q. Okay.
Do you know who created this
document?
A. Yes.
Q. Who did?
A. Patricia McClary.
Q. Do you know how this document is used
at Cornell?
MR. POTTER: Objcction.
A. T know that it is used in conjunction
with course teaching.
Q. Anything elsc?
A. I'm not aware uf other uses.
Q. Do you know whether this Checklist
for Conducting a Fair Use Analysis was used at
any point during the digitization process that
occurred as part of the Googlc projcct?

Filed 07/11/12 Page 59 of 92

lIUC~llUIl3,

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and try to finish that up and then we'll be
done. Take five minutes.
(Recess taken from 5:06 p.m. to
5: 11 p.m.)
MR. GOLDMAN: All right. Let's mark
this.
(PH Exhibit 14. Documcnt cntitled
Checklist for Conducting a Fair Use
Analysis before Using Copyrighted
Materials, was marked for
identification. )
BY MR. GOLDMAN:
Q. I markcd as PH -14 a document
entitled, "Checkli~t for Conducting a Fair Use
Analysis before Using Copyrighted Materials."
I downloaded this from the Cornell University
~\Vcbsitc.AC~lI~I.IX'. i.fX0':l~~ee on the second
Page 229

P. Hirtle
A. I'm not aware of that.
Q. Do you know whcther -- if you look at
this list, there's _. there appear to be four
categories that are to be examined, thc purpose
of the use, the nature of the copyrighted
material, the amount copied, and the effect on
the market for thc original.
Do you know whether anyone ever
examined those factors with respect to any
particular work that was digitized as part of
the Google project?
A. Someone may have, but I'm not aware
of that.
Q. Do you know whether those factors
were examincd with respect to the project as a
whole -- withdrawn. I'll withdraw that
question.
MR GOLDMAN: I have no fmiher
questions.
MR. POTTER: Give mc a couplc of
minutes to talk to my people and see if
thcre's any redirect.
MR. GOLDMAN: Absolutely.
(Recess taken from 5: 14 p.m. to

[phone]

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A-1271
Case 1:11-cv-06351-HB Document 125-4

court reporter to
transcript. )

be

allacnca to me

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PETER HIRTLE

~~

Subscribed and sworn to before me
this day of
2012.

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Filed 07/11/12 Page 60 of 92

I, THOMAS A. FERNICOLA, Registered
Reporter and Notary Public within and for
the State of New York, do hereby certify
that the within is a true and accurate
transcript of the proceedings held on
April IS, 2012.
That I am not rcIated to any of the
parties to this action by blood or
marriage; and that I am in no way
interested in the outcome of this matter.
IN WITNESS WHEREOF, I have hereunto
set my hand this 30th day of April 20 12.

THOMAS A. FERNICOLA, RPR

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----------------------- EXHIR ITS ----------------PH EXHIBITS
DESCRIPTION
PAGE LlNE
Exhibit I Printout from Cornell
14
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website,
Exhibit 2 Organization Chart for
22 22
Cornell University Library,
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19
ExhIbit 3 Printout for Comell.edu
website,
Exhibit 4 Printout of Press
24
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Release,
5 Printout of News Articles,
S4 17
(-)
112
Exhibit 6 Press Release dated
October 20.2010.
136 25
Exhibit 7 Document bearing Bates
No. COR000463 to 468,
Exhibit 8 Document bearing Bates
159
6
Nos. COR000469 through COR000477,
Exhibit 9 Newsletter dated April
178 16
13,2012,

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--------------- EXUIBITS (Cont'd) ---------------PH EXHIBITS
DESCRIPTION
PAGE LINE
Exhibit 10 Document entitled
181
2
Copyright and Cultural Institution
Guidelines for Digitization for
U.S. Libraries Archives and
Museums,
Exhibit II Press Release dated
200
IS
August 24, 2011,
Exhibit 12 Copy ofDVD,
6
204
Exhibit 13 Article entitled Undue
219 25
Diligence dated Fall 20 I 0,
Exhibit 14 Document entitled
227 15
Checklist for Conducting a Fair Use
Analysis before Using Copyrighted
Materials,

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EXHIBIT 9

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THE

AU~HORS

GUILD, INC., et al.,
Plaintiffs,

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Case No. 11 Civ. 6351

vs.
(HB)

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HATHITRUST, et al.,

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Defendants.

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The Deposition of JOHN P. WILKIN,

16

Taken at 530 State Street

17

Ann Arbor, Michigan

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Commencing at 9:32 a.m.

; 9

April 25, 2012,

20

Before Kathryn L. Janes, CSR-3442, RMR, RPR.

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Q. And tell me about those projects.
MR. PETERSEN: Objection to form.
A. I wouldn't characterize them as projects. I would 12
13
characterize them as library preservation acccss
1
114
activities.
BY MR. GOLDMAN:
Q. Under what circumstances did University of
Michigan digitize books that werc bclieved to be
in copyright for the purposes of preservation,
and we're talking about the time pel10d prior to
o
the Google MDP?
1
MR. PETERSE01: Objection to form and
122
objection to the extent it calls for a legal
conclusion.
124
But you can answer.
I
A. The library routinely digitized works that were
125
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JOHN P. WILKIN
step by step how a -- how a work that was
detemlined to be damaged or deteriorating would
be digitized by UM prior to the Google MDP?
MR. PETERSEN: So you're talking about
after a decision was made that it was, in fact,
damaged or deteriorating at that point in time
physically, mechanically how that work would have
been digitized. IS that fair to say, Jeremy, IS
that the nature of the question?
MR. GOLDMAN: Yes, [mean, we could go
step by step, but yes, that is the nature of my
question.
BY MR. GOLDMAN:
Q. Why don't we start with that.
A. A book that the circulation staff identIfied as
damaged or dderiurating was sent to -- would be
sent to the preservation and conservation staff.
Preservation and conservation staff would make a
treatment decision. It may be possihle, for
example, to repair the book. But if the book was
to be digitized, there were a number -- there are
a number of methods by which the -- there were
then and there are now a number of methods by
which the book could be digitized.

Filed 07/11/12 Page 18 of 100

Q. And how was that determination made?
A. Those dderminalions were made in many different
ways, sometimes at a circulation desk when
somebody was checking out the work, sometimes by
preservation and conservation staff.
Q. And what was -- what was the process by which a
work that was determined to be damaged or
deteriorating at the circulation desk, what was
the process by which such a work would be
digitized at UM?
A. The process by which it -- I'm sorry, there were
two different questions there.
MR. PETERSEN: Object to form on it,
yeah.
BY MR. GOLDMAN:
Q. Well, T guess I'm asking you to walk me through

Page 65
JOH]\; P. WILKIN

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Q. Are you aware of the critelia that were applied

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to dctenninc whether a work was damaged?
A. No, not specifically.
Q. Where did you -- why are you using the word
damaged, is that a term of art?
MR. PETERSEN: Objection to form,
objection to the extent it calls for a legal
conclusion.
A. It is -- I'm not -- I'm not using it as a telm of
art, I'm lIsing it to broadly describe the rubric
of materials that a circulation staff would
identify as being in need of treatment.
BY MR. GOLDMAN:
Q. And do you distinguish between a work that is
damaged and a work that is deteriorating?
MR. PETERSEN: Objection to form.
But if you can answer.
You mean hl1n personally?
BY MR. GOLDMAN:
Q. I mean you personally.
A. Right.
Q. When you say the words damaged or deteriorating,
are you referring to one state of a book or are
you referring to two diffcrcnt states of a book,

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A. Fur txample -- for example, somebody may have
1
spilled a drink Of have food in the book or the
bindings may be removed. There are many ways that 112
3
a book could be damaged.
4
Q And what does it mean, in your view, that a work
S
was deteriorating?
6
A. Keeping in mind that this is outside of my
17
professional sphere of responsibility, I generally
8
understand that to be materials with acid content
9
in the paper, that category of materials published
0
between 1850 and 1990 typically where the paper is
1
in a process of decaying.
22
Q. Is the -- when you say that there's materials
3
with acid content, is the acid content intrinsic
4
to the medium itself?
15
MR. PETERSEN: Objection to form,

Filed 07/11/12 Page 19 of 100

for works that arc in which date range did you
mention?
A. 1850 to 1990.
Q. SO are you saying books that were created dUfing
the time period 1850 to 1990 typically involved
paper with a high acid content; is that correct?
MR. PETERSEN: Objection to form.
A. That's my -- that's my understanding.
BY MR. GOLDMAN:
Q. And so is it your understanding that works that
were created during that time period with a high
acid content are deteriorating?
MR. PETERSEN: Objection to form.
A. It is my understanding that works created using
that method during that period are deteriorating
with the natural process of decay.

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JOHN P. WILKIN
BY MR. GOLDMAN:
Q. Now -- now, you said earlier that this wasn't
yuur area of expertise; is that right?
MR. PETERSEN: Objection to form.
BY MR. GOLDMAN:
Q. And by this area, I mean, the area of making a
determination as to whether something is damaged
or deteriorating; is that right?
MR. PETERSEN: Same objection.
A. The preservation and conservation is not my
professional area of training or expertise.
BY MR. GOLDMAN:
Q. Who at UM ultimately would make the determination
as to whether a particular work would be
digitized for preservation purposes because it is
damaged or deteriorating?
MR. PETERSEN: Objection to the extent
it suggests that only one person would make that
determination. If the witness can answer, he is
certainly free to do so.
A. It's a complicated pro~ess with many people who
are lIIvolved, including preservation and
conservation staff, and not infrequently
collection development staff.

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BY YIR. GOLDMAN:
Q. Do they -- do you know, are you aware of whether
those -- those people have written guidelines
that they use when making a determination as to
whether a work i~ damaged or deteriorating?
A. I'm not aware of whether they have written
guidelines.
Q. Have you ever seen written guidelines that set
forth the criteria that shuuld be applied to
determine whether a work is damaged or
deteriorating?
!viR. PETERSEN: Prepared by anyone?
BY MR. GOLDMAN:
(). Prepared by anyone.
A. I don't recall. This is an area of considerable
professional activity and I'm sure that things
like that have been around me and I may have seen
them, but I don't recall.
Q. Do you know whether pnor to a work being
digitized for preservation purposes anyone on the
library staff made a search to determine whether
an unused replacement copy of the particular work
that was going to be digitized could be obtained
on the market?

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Q. And this question still relates to the time
period prior to the Google MDP. Let your counsel
take a look and make his objections, if any.
MR. PETERSEN: Objection to form,
objection, vague, and objection, lacks foundation.
If the witm:ss is wmfortable, ifhe understands
the question, he certainly may answer it.
I know it's been some time, been
delayed occasioned by my objections, so you may
want to have that question read back to you.
A. Why don't we read it -- read it back.
(The following record was read by
the reporter at 11:01 a.m.:
"QUESTION: Do you know whether
prior to a work being digitized for
preservation purposes anyone on the

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A. Right. I believe it's the case that it was common
for searches to be performed for unused

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replacement copies.

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BY MR. GOLDMAN:

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Q. Do you know how those searches were conducted at
that time?
A. I don't.
Q. Who would know how those searches were conducted?
A. At that time -MR. PETERSEN: Who at the university
now would know then or who then would know?
BY MR. GOLDMAN:
Q. Who would know then?
MR. PETERSEN: Titles of people or
names'!
BY MR. GOLDMAN:

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Q. I'm asking generally who, and we'll see what
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answer you can provide.
4
A. Probably preservation and conservation staff at
5
that time.
6
Q. And what about today?
7
A. Today? I -- let me just think about that for a
8
second. Tthink that might be done by technical
9
services staff.
Q. Okay, I'm going to show you what was marked ~o
yesterday as PC 11, which are -- which are
~l
2
entitled Responses to Plaintiffs First Requests
3
For Admission to Mary Sue Coleman, this is a
4
document that was provided to us by counsel for
5
University of Michigan and others.
MR. BERNARD: Which document is it? : 6
7
MR. PETERSEN: The Response to
Plaintiffs First Request For Admission to Mary
Sue Coleman.
o
BY MR. GOLD.Mk,\!:
1
Q. And I see you're already taking a look at this
2
document, but I guess I would just first ask you
3
to take a look at the document and let me know
4
whether you've seen a copy of this document
5
before?

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JOHN P. WILKIN
MR. PETERSEN: And I'll just note for
the record and also for the witness that this
documcnt was prepared in part under the advice of
counsel, and so I just caution the witness not to
divulge attorney-client privileged information.
But you are free to answer factual
questions addressed to that, but please be careful
not to -- not to divulge attorney-client
privileged information.
BY NIR. GOLDMAN:
Q. Have you seen a copy of this document before?
A. I have.
Q. Okay. And did you help collect information
that -- to respond to the request that was made
for this document?
A. [did.
Q. Ifwe could turn to page 5 -- sorry, page 7 and
look at request number 5.
A. Uh-huh.
Q. Let's read the -- I'll read the request and then
['II direct you to the portion of the response
for which I'm going to ask questions.
A. Gh-huh.
Q. SO number 5 says: For each work listed on

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library conducted ~earches of the databases it
uses to identifY the availability and price of a
new hook, the library was able to identifY an
unused print copy of the following works listed
on Schedule A, and then it sets forth a number-a number of works. I guess my first question is:
Do you know the -- do you know the date that the
library conducted the searches that arc
referenced in this question?
MR. PETERSEN: Objection to fonn.
A. T don't. They were conducted in -- in support of
preparing a response.
BY MR. GOLDMAN:
Q. SO you mean the searches that are referenced here
were conducted in response to plaintiffs
is that --

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A. Are you asking ahout the individual or the
department?
BY MR. GOLDMAN:
Q. Let's start with the department.
A. I believe that would have been the acquisitions
department.
Q. And do you know who at the acquisitions
department?
A. I do not. Tdo not recall.
Q. Did you -- you said that you did help collect
infonnation that was used in these responses; is
that right?
A. I did say that.
Q. Did you help collect the infonnation that was
used to respond to this question number 5?
MR. PETERSEN: Which

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MR. GOLDMAN: The part that we're
talking about right now, subpart (i).
MR. PETERSEN: Objection to fonn.
A. By help do you mean coordinated the process?
BY MR. GOLDMAN:
Q. Let me -- let me ask a different question. What
was the nature of your help? How did you help
collect the infonnation that was used in this
response?
A. I identified managers who could direct staff to
collect this infonnation.
Q. And who was the manager that you directed to help
staff in response to this question?
A. Who was the manager who could direct staff to
collect the infonnation?
Q. Yes.
A. Right, because the manager wouldn't have collected
the information. Our associate ulllversity
librarian for collections, Bryan Skibo
Q. I'm sorry, say the name again?
A. Bryan Skibo S-K-I-B. B-R-Y-A-N. S-K-I-B.
Q. Are you aware of which databases were used to
conduct the searches referenced in this answer?
MR. PETERSEN: Ohjection to form.

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A. I'm not. I could speculate.
BY MR. GOLDMAN:
Q. Well, are you generally aware of what databases
the library uses to conduct searches like this?
A. Not comprehensively.
Q. SO I'm going to ask you to speculate.
MR. PETERSEN: It doesn't do the record
any good, Jeremy, you know that. We can't use
speculating on the record.
BY MR. GOLDMAN:
Q. Well, what is your -- let me ask this, not to
speculate. Why would -- you said you could
speculate, what do you mean by speculate?
MR. PETERSEN: Is it an informed
opinion or would you be guessing')

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THE WITNESS: I would bc guessing.
MR. PETERSEN: Okay. All right.
BY MR. GOLDMAN:
Q. I assume that Bryan Skib would know the answer to
that question?
A. He may know the answer to that question.
Q. Are you aware of databases that are generally
used by the acquisitions department to search for
the availability of books?

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and I'm several steps removed from it.
Q. Ifwe go to subpart (ii), it says: Defendant
avers that, on the date the library conducted
searches of the databases it uses to identity the
availability and price of a new book, the library
identified offers advertising for sale one or
more allegedly new print copies of an apparently
identical edition of the following works listed
on Schedule A for the following prices. When it
says on the date that the library conducted
searches, is it the same answer as before?
MR. PETERSEN: Ohjection to fonn. If
you put the question to him -BY MR. GOLDMAN:
Q. Let me ask it again. Are you aware of when this
search was conducted?

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Q. Now, when it says that the library identified
offers advertising for sale one or more allegedly
new print copies of an apparently identical
edition of the following works, do you know what
is meant by apparently identical edition?
MR. PETERSEN: Objection to form.
A. The whole sentence is important, often materials
are advertised and when we attempt to acquire
them, they are not availahle. Offers advertising
for sale, sometimes the work is not available. It
has advertised availability, but the work is not
available. The works are alleged to be new, and
when we acquired them, if we are able to acquire
them, they are not new in some cases. And
occasionally the work will be purported to be of a
edition and when the book arrives, it's
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JOHN P. WILKIN
not the same edition.
BY MR. GOLDMAN:
Q. We were speaking earlier about the -- we were
speaking earlier about the library's digitization
of certain works for preservation purposes, and
I'm talking about the time period prior to the
Google MDP, and I believe you said that it was
common for the library to make a search for a
replacement work of an unused copy; is that -- is
that right?
MR. PETERSEN: Object to the extent it
mischaracterizes his testimony.
If you can identify if it does at alL
BY MR. GOLDMA~:
Q. And iff am miseharaetcrizing, please let me
know.
A. I think that's a fair, incomplete
characterization. In many cases. not all cases
necessarily, and I couldn't tell you which cases
that was -- that where it did happen, but it was
common for us to search for the availability of a
replacement copy.
Q. Now, turning to that phrase replacement copy -A. Uh-huh.

TSG

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Q. -- when the library does a search for a
replacement copy for preservation purposes, does
the library look for the identical edition of the
copy it is looking to replace?
A. Typically, frequently, and overwhdmingly, I would
say.
Q. SO if there's a later imprint or edition of the
work available, the library would not consider
that a replacement copy?
MR. PETERSEN: Objection, form,
objection to the extent it would call for a legal
conclusion, but the witness can certainly answer
if he understands the question and has information
to describe.
A. So I didn't say we would not acqlllre that copy,
and that's what you said.
BY NfR GOLDMAN:
Q. Would the library, if -- if the library conducted
a search and found a later edition of the same
work, do you know whether the general pracltce of
the library would be to still digitize that work?
MR. PETERSEN: Objection to form, lacks
foundation, and objection to the extent it calls
for legal conclusions.

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the master digital copy, master university copy
and all se<.:Ondary university copies, HathiTrust
digital copies and third party digital copies of
the work. Everything I just read are capitalized
and defined terms which may require you looking
back in the document, but I don't think you'll
have to.
MR. PETERSEN: To which they are
subject to objections.
MR. GOLDMAN: Yes,
BY ~. GOLDMAN:
Q. And therc's a numbcr -- there's a list of
information that's requested with respect to
those works, and if you tum the page to
subsection (I) -A. Uh-huh .

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MR. PETERSEN: To the extent you can
recall.
A, I managed staff who collected this information and
reviewed the information that was submitted.
BY MR. GOLDMAN:
Q. Now, if you turn to page 16.
A. Uh-huh.
Q. In the middle of the page it says: In response
to subpart L, which is the subpart I just read,
it says: 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 1st, 2012. All individuals identified
as employees of the university, the University of
Wisconsin or Indiana UII' '''lsity may be contacted

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JOHN P. WILKIN
through defendant's counsel. And then there's a
chart here with a number of individuals listed,
did you -- did you help prepare this schedule,
Mr. Wilkin, and I mean, you personally?
MR. PETERSEN: Objection to form.
A. No, I believe that this is the processing of
information we provided.
BY MR. GOLDMAN:
Q. Now, is it -- it's my understanding that the
individuals that are listed in the second row and
second column under initial HathiTrust digital
copy, those are the list of individuals who
have -A. I'm sorry, Jeremy, I'm having a hard time.
Q. Sorry.
A, Second row, second column, you mean -Q, The column that slar~ -- the cell that slarts
with Ezra Brooks,
A. Thank you.
Q. Thcsc arc the individuals who have access to the
physical location of the initial HathiTrust
digital copy; is that right"
MR. PETERSEN: Objection to form, He's
going to need some time. I think these are vcry

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JOHN P WILKIN
detailed.
MR. GOLDMAN: T know.
MR. PETERSEN: The interrogatories
themselves are very detailed, and so it is
difficult to have the witness just on the fly
respond to a particular cell or component.
A. Uh-huh.
MR. PETERSEN: So I don't know how else
to do it, he will have to spend a lot of time
looking through cach onc and he -- obviously it's
your time here today and if that's the way you
want to put his time, that's absolutely fine, but
I would caution you to give him enough time
because he's -MR. GOLDMAN: Okay, I understand.
BY MR. GOLDMAN:
Q, Let's try to simplifY it a little bit and maybe
you can you use this as a reference point -A. Ycah.
Q. -- rather than asking specifically about it.
'.X.'hich categories of staff have
authorized access to the physical machines where
the HathiT rust digital copies are stored?
MR. PETERSEN: If you know.

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right?

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MR. PETERSEN: Objection to form.
A. A mirror copy?
BY MR. GOLDMAN:
Q. Yes.
A. Yes.
Q. And is it the same answer with respect to the
mirror copy?
A. Yes.
Q. Now, in the next line, and 1 -A. Uh-huh.
Q. -- and there's a list of people that extends for
three pages -A. Yes.
Q. -- of individuals who have what I called virtual
access to the HathiTmst digital copy and the

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your own personal knowledge.
A. Stipulating that virtual copy is not a teml that
has any meaning in our context, and that we
understood it to be somebody who was permitted to
read the materials, these -- they're given
specific pennission to read the materials. The
categories of people are my staff, copyright
reviewers at Michigan and at partnering
institutions, staff who perform quality review at
Michigan, and the unnamed persons who have print
disabilities.
Q. There's also listed on here people with a title
orphan works investigators, is that -A. That IS true .
Q. -- a separate category of people?
A. That is a separate category of people.

r-~--"~~~~------'--~---"~~~~~---"--~-4'~--'--'~---

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Q. Are there any others that you might have left
off? By reference to the list, you can look at
the list to help you.
A. I will look at the list.
Q. And I'm not quizzing you, I just want to know
whether Tgot all the categories.
A. Stafffrom the copyright office generally,
digitization staff: some catalogers, and I believe
that covers it.
Q. And can we refer to this group of people as
people with privileged access to the materials;
i, that a fair -- or if you can characterize it
differently, that's fine, I just want a way to
refer to these people?
MR. PETERSEN: Objection to fonn.
How would you characterize?
A. I believe that that's the term that was used by my
staff in putting together this.
BY MR. GOLDMAN:
Q. You said that these privileged users have
specific permission to read materials, are they
limited in which materials they are permitted to
view?
MR. PETERSEN: Objection to fonn.

TSG

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If you can answer.
A. No, they are not limited in which materials they
can view.
BY MR. GOLDNIAN:
Q. They can view any work that's stored in the
HathiTrust Digital Library; is that right?
A. They can view any work that's stored in the
HathiTrust Digital Library.
Q. Can they download any work that's stored in the
HathiTrust Digital Library?
MR. PETERSEN: Objection to fonn,
compound.
MR. GOLDMAN: Where's the compound?
MR. PETERSEN: Variety of individuals,
some may have different rights to do certain
things than others.
BY MR. GOLDMAN:
Q. Well, if that's the case, then let me know.
/\. With vcry few exceptions, r would say five, and
setting aside the students and faculty who have
print disabilities, these individuals are
permitted to read works from a specific location,
a specific IP address that is from his or her desk
as part of his or her work, and can read one page

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Q. After the user has been authenticated on the
system, correct?
A. After the user has been authenticated coming from
a specific work station.
Q. And who manages the list of privileged users?
MR. PETERSEN: Objection to form.
But you can answer.
A. Again, that's Phil Farber as mentioned earlier,
and I must give permission for the addition of
any -- any user, individuals who leaves their
employment or are removed from the list, and we
review the entire list periodically.
BY MR. GOLDMAN:
Q. How often do you review the list?
A. I believe we review the list quarterly.
Q. SO does that mean -- sorry, you were one of the

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A. What do you mean by privileged material?
MR. PETERSE~: I don't think that's a
term we've used.
BY MR. GOLDMAN:
Q. Do you have access to read copyrighted material
that hasn't been authorized for use at home?
A. I do not.
MR. PETERSEN: Just please note my
objection to form on that for the record.
BY MR. GOLDMAX
Q. Ifwe tum back to the technological profile.
A. Yes.
Q. And you tum back one page to the fifth page.
Uh-huh.
The last line says API batch export.
A. Yes.

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entry, formats stored in a rcpository are
4
exported through the data API, what does that
5
mean, if you know'!
6
MR. PETERSEN: Objection, foundation.
7
A. I would be guessing. T have an informed guess.
8
MR. PETERSEN: That's blurry. Ifit's
9
a guess or speculation, you shouldn't guess or
o
speculate.
1
BY MR. GOLDMAN:
2
Q. It's not important enough to this deposition to
3
ask, so it's fine. I apologize for jumping
4
around, but if you tum the page and go back to
5
the security section, and the last line says
6
policy, on the next page it says management,
right?
A. Why don't we start from the -- what page number'?
Q. Sure.
A. JW6.
Q. It's JW6, page 6.
A. Okay.
t23
Q. The last line of the page reads policy.
1?4
A. Uh-huh.
125
Q. And it continues management on the next page.

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JOHN P. WILKIN
A. Yep.
Q. And the entry says: HathiTrust adheres to the
information technology security policies of the
University of Michigan Library, where it is
hosted. The University Library participates in
distributed organizational model where units
across the university (of which it is one) have
prime responsibility for planning and managing
security within their tmits, coordinated by
campus information Technology Security Services.
Can you explain that to me') Are you able to
explain that to me to the extent you can?
MR. PETERSEN: Do you know?
A. I do. Keeping in mind again that this is a
foreign framework, a framework that is not
designed tu describe what we do and to which we
were providing infom13tion. This is a fairly
garbled, and you see some of the syntax there and
case, noun, verb agreement statement that says:
We have policies and we're part of a larger
university that has policies that govern what we
do. There's a reference to a now defunct
organization responsible for security, it's now -these are now handled by IlA.

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about an hour, a good spot for a break?
MR. GOLDMAN: Okay. Let's try to do a
quick one.
MR. PETERSEN: Sure.
MR. GOLDMAN: Because I want to try to
get wrapped up here. I'm not up to wrapping up,
so I -MR, PETERSEN: False hope.
MR. GOLDMAN: I wish. I'm sorry, I
would like to finish as quickly as possible.
(Recess taken at 3:44 p.m.)
?age 208

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(Back on the record at 3:52 p.m.)
BY MR. GOLDMAN:
Q. Okay. Do you believe that a member of HathiTrust
could save costs by participating in HathITrust?
MR. PETERSEN: Objection to form.
A. Save costs in what?
BY MR. GOLDMAN:
Q. In any way?
MR. PETERSEN: Same objection.
A. It's pretty broad, but yes. A contributing
partner will get the storage and digital
preservation work done more cost effectively. A
sustaining partner has a framework for shared -shared interests through their participation that
will ultimately allow them to save money, for
example, in, we hope, shared print storage.
BY MR. GOLDMAN:
Q. Now, what do you mean by cost savings with print
storage?
A. Most libraries, certainly research libraries and
many academic libraries have large storage, print
storage facilities with volumes that are little
used, unused and it's often the same volumes
across institutions. We need to insure that the

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print is preserved and we can do it more cost
effectively and we can do it better, for example,
with climate control, perhaps mass
deacidification, we can do it more etlectively.
BY MR. GOLDMAN:
Q. Do you believe that there are opportunities for
member institutions to reduce the number of books
that they acquired by virtue of the fact that
there is a shared digital repository?
MR. PETERSEN: Objection to form.
But you can certainly answer.
A. Yeah, in my opinion that's never been the case,
I've been asked about that and I've saId no.
BY MR. GOLDMAN:
Q. Have other people thought that might be the case?
l'vtR. PETERSEN: Objection to form. Also
speculation.
A. I don't think -- right.
BY MR. GOLD'JAN:
Q. Are you aware of anyone who has expressed the
opinion that that is the case?
A. I'm not aware of any credIble collectIOn
deVelopment person who believes that that's the
ca~e, we don't
less now than we did

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DEPOSITIO:-.l EXHIBIT JW7
3:55 p.m.
BY MR. GOLDMAN:
Q. There is a document entitled HathiTrust
Constitutional Convention Opening Presentation,
HathiTrust Past, Present and Future, John Wilkin,
I1athiTrust Executive Director. I'm going to ask
you to take a look at this document and tell me
whether you recognize it.
A. This looks like my opening remarks at the
Constitutional convention.
Q. And these are remarks that you prepared?
A. That's right.
Q. You wrote this document?
A. I wrote this document.
Q. I will ask you to tum to page 6 where it talks

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based on your own knowledge.
MR. PETERSEN: ObjectIOn to form.
A. HathiTrust at the University of Michigan ha~ begun m
~
to provide services to users with print
~
disabilities by combining authentication and
authorization of those individuals, and providing
to them a tailored view of the matcrials designed
for use with screen readers and other forms of
devices. We have also begun to pruvide limited
access to some in-copyright materials not
available on the market where the work is damagcd
or deteriorating or is gone from the University of
Michigan cullectiun.
BY MR. GOLDMAN:
Q. Anything else?
A. Those are the two that I'm aware of.
·~--~-~~------~~·4\

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MR. PETERSEN: It might be a
definitional issue in tenns of the search
functionality, so just make sure you get a full
record.
A. Thank you.
BY MR. GOLDMAN:
Q. When you said users with print disabilities, who
is considered a user with a print disability?
MR. PETERSEN: Objection to fonn,
objection, foundation.
BY MR. GOLDMAN:
Q. To the extent that you know?
MR. PETERSEN: Who makes those
determinations or -MR. GOLDMAN: We might get to that.
A. Well, persons who are certified to have print
disabilities is the simple answer to that
question. We don't make those detenninations.
BY MR. GOLDMAN:
Q. Who makes those detenninations?
A. An office for -- for services -- Office of
Services For Students With Disabilities, OSSD.
Q. Do you know whether a student who has, for
example, a learning disability would be able to

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JOHN P. WILKIN
gain privileged access to these -- to materials
on HathiTrust?
A. I don't know. We do rely on that office which is
charged with making those determinations.
Q. SO you don't know -- you don't know exactly
which -- which types of people or which
disabilities will permit someone to have access;
is that correct?
A. That's right. Assuming print disabilities in our
conversations would then make that clear.
Q. What is the process by which a person receives
authentication through that office?
MR. PETERSE;-.J": Objection, I think he
just disclaimed knowledge of those processes or
decision making, but to the extent you -BY MR. GOLDMAN:
Q. Well, I'm leaving out the decision as to which
particular person will get access, but once a
person is deemcd to be print disabled, how docs
it come about that that person obtains access to
materials in HathiTrust?
MR. PETERSEN: tfyou know.
A. I do. And there are -- it's authentication and
authorization. Individuals have credentials which

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authorization piece.
BY MR. GOLDMAN:
Q. Now, if a person has the proper credentials, docs
he or she have access to view the image files or
only the full text of the work?
MR. PETERSEN: Objection to fom1.
A. A person certified to have print disabilities has
access to view the text, and that's the primary
means of accessing the work. We do also provide
access to the image files to have them, for
example, enlarged. They're one at a time and
deemed to be ancillary, secondary to the text.
BY MR. GOLDMAN:
Q. HathiTrust does -- does HathiTrust make material
available through an API mechanism?
MR. PETERSEN: Objection to form,

.

Filed 07/11/12 Page 56 of 100

10

Q. Can a person with print disability credentials

11

obtain access to HathiTrust data through the data
API?
MR. PETERSEN: Objection to form.
A. No.
IW MR. GOLDMA:-i:
Q. Why not?
A. We don't make that possible. That's the simplest
answer, we designed a service for them.
Q. Do users with print disability credentials have
the ability to download one page at a time?
A. They do.
Q. Do they have the ability to download the full
text ofa document?
A. Can you be specific? I think I know what you're
asking. but if you could--

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Q. Which part is not -- which part would you like me
to?
:viR. PETERSEN: I think the question
would be broader than one page at a time, do you
mean?
BY MR. GOLDMAN:
Q. The full text of an entire work?
MR. PETERSEN: Object to form.
But you can answer.
A. Can they download the full text one page at a
ti~?

BY MR. GOLDMAN:
Q. No. can they download the full text of an entire
work at the same time?
MR. PETERSEN: Objection.
A. Are you asking if they can download the OCR?
BY MR. GOLDMAN:
Q. Yes, I am.
A. Yes, they can.
Q. Is there any location based limitations on users
with print disabilities acce~sing HathiTrust?
MR. PETERSEN: Objection to form.
But you can answer.
A. There are limitations.

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BY MR. GOLDMA~:
Q. And what are those limitations?
A. We restrict access to IP addresses in the United
States.
Q. Other than that, are there any restrictions?
A. Not that I recall.
Q. Is that -- is that program -- and by program I
mean, making certain works available to users
with print disabilities, does that program only
exist for UM students at this point?
A. It only exists for UM students for some works at
this point.
Q. What do you mean by for some works?
A. Ifwe do not 0\\011 the work in print, we do not
provide access to the work for the student.
Q. Are there plans to extend this program to other
universities?
MR. PETERSEN: Objection to fonn.
A. Would you rephrase the question?
BY MR. GOLDMAN:
Q. Are there plans to make -- are there plans to
allow users with print disabilities at other
universities to access works on HathiTrust that
originate from their university libraries?

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provided acccss -- providcd ac(;css tu digital
coptes of works to people with print
disabilities?
MR. GOLDMAN: Objection to fonn.
A. I'd havc a hard time with the chronology, the
precursor to HathiTrust and books IIlay or may not
have had that functionality, but I know we were
working on that functionality. I don't recall
when we deployed it and when HathiTrust emerged
distinctly from M Books.
BY MR. GOLDMAN:
Q. How did the system under:\1 Books work?
MR. PETERSEN: Which-BY MR. GOLDMAN:
Q. Let me actually withdraw that and ask-A. Yeah.

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Filed 07/11/12 Page 57 of 100

A. Typically -- well, certainly I don't have any
direct experience of them.
Q. SO to the best of your knowledge?
MR. PETERSEN: As long as you're not
speculating or guessing.
A. Yeah, to the best of my knowledge, a student would
acquire a book, a copy of a book and take it to
the office, the OSSD, and scan the book, sheet
fed, typically it meant the loss of the book at
the same time. A library book may be -- may have
been borrowed and used on a flatbed scanner, one
page at a time, which -- which was also
problematic in tenn5 of the care and handling of
the book, but it was one book at a time.
BYMR. GOLDMAN:
Q. And the digital copy was made in response to a

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JOHN P. WILKIN
request by a person; is that right?
A. That's my understanding.
Q. On a case-by-case basis?
A. On a case-by-case basis.
MR. PETERSEN: Objection to fonn.
BY MR. GOLDMAN:
Q. And how does the system work now with HathiTrust
for users with print disabilities?
A. Well, I think it needs to be said that the
experience for the print disabled user is like the
experience of a person without disabilities, that
is, where you can walk into the library and use a
book on the shelf. They can now, tfwe have the
book digitized and online, usc the book on that
virtual shelf. They've authenticated and if we
own a copy in print, they then have access tu it.
Their experience is much more similar. They have
some of the advantages of their counterparts who
don't have disabilities.
BY MR. GOLDMAN:
Q. And how does -- how dues access to the HathiTrusl
copy help them wtth their dtsability'!
MR. PETERSEN: Objection to fonn.
A. I think you'd have to rephrase the question for

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JOHNP. WILKIN
me.
BY MR. GOLD:\1AN:
Q. Okay. What -- does it provide, for example, text
to speech ur sume uther mechanism to help the
person read the book?
A. Thc fonn that we provide to them is designed to
work well with devices like text to speech, JAWS,
for example, or digital Braille devices. We have
worked with users and those devices to ensure that
they have something that provides them with
reading capability for those devices.
Q. Turning to thc second category of uses of
in-copyrighted works that you mentioned -A. Uh-huh.
Q. -- which I believe refer to Section 108 uses,
could you tell me what you meant by that second
l:ategory, and by a sel:ond category I'm referring
to -MR. PETERSEN: Yeah, it
miseharaeterizcs the testimony. I don't believe
the witness ever mentioned anything to do with
Section 108.
MR. GOLDMAN: I apologize then.
BY MR GOLDMAN:

877-702-9580

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A-1286
Case 1:11-cv-06351-HB Document 125-5

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Q. Sure. You know what, why don't we read it for

1
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the record so that's clear.
A. Yeah, sure, uh-huh.
Q. It follows after the parenthetical, Alfredo
Candia Guzman, Bolivia: un expcrimcnto counmista
en la America, published in Bolivia in the late
19505, is reformatted as part of a topical
conversion effort. Although, based on its
bibliographic information, parenthetical, sec use
case number I, the volume enters the collection
as an in-copyright text and access is restricted,
our research determines that the author has died
and thc publishing house no longer exists. The
volume is classified as an orphaned copyright
work, parentht:tical, attribute name equals orph,
end parenthetical, wIth noted due dil!gence,

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Filed 07/11/12 Page 62 of 100

MR. PETERSEN: Objection to form,
objection to the extent it calls for a legal
conclusion and caution the witness not to divulge
any attorney-client privileged information.
Subject to those objections, you can
certainly answer.
A. Keep in mind that the rights database was meant to
be a flexible framework to support a number of
types of use cases. The writer put together a
hypothetical based on -- a hypothetical situation
about passage of legislation, probably a
hypothetical legislation, in fact, as legislation
had not been passed, and described circumstances
under which access would be -- would be provided
to the work in question.
BY MR. GOLDMAN:

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Q. You're aware of Michigan's participation or -you're aware that Michigan alIDounced its
participation in something called thc Orphan
Works Project, correct?
A. lam.
Q. And wonldn't works have been made available under
the -- under the Orphan Works Project in the same
manner that's described here but without any
h:gi;;lation having been pas;;ed?
MR. PETERSE:">I: Objection to toml,
objection, mischaracterizes the record.
1\.. Not at all.
BY MR. GOLDMAN:
Q. And why is that?
A. There, YOIl know, I can't recall when this was
writtcn, but it's hound to hc years ago. It
doesn't resemble in any way what we documented and
publicized as the controls under which we would
make works available. It talks about worldwide
access, we didn't plan to do that. It doesn't
talk about the access controls based on print
holdings. We do that. It does not resemble in
any way what was proposed and further the Orphan
Works Project is primarily about the

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JOHN P. WILKIN
identification of works. The access to those
works never took place, it's speculative.
BY MR. GOLDMAN:
Q. Are you -- the Orphan Works Project was
suspended; is that right, or let me rephrase
that.
A. Yeah.
Q. There came a time when Michigan announced that it
was not going to list candidates for the Orphan
Works Project anymore; is that right?
A. That's right.
Q. And is there a process occurring at this time to
make adjustments to the procedures that are part
orthe Orphan Works Program -- Orphan Works
Project?
MR. PETERSEN: Objection to form.
1\.. To the determination process?
BY MR. GOLDMAN:
Q. Yes.
A. There is contmuing -- there IS continuing review
of the process with scmtiny'given to the
reliability of the determinations.
Q. The -- Michigan announced that there were errors
found in the process that had been prt:viously

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that the process was a good process and that
11
listing the works gave those works the kind of
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attention that helped us to identify works that in
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some cases were not urphan works, that's a
1~
success. But we can always improve the process.
BY MR. GOLDMAN:
16
Q. When you say by listing the works, do you mean
7
posting them un the HathiTrust website?
8
A. The candidates on the HathiTrust website.
Q And were they posted anywhere else'?
I9
A. To my knowledge, they were posted -- deliberately
1
posed in twu places, others may have reposted
2
them, but they were posted -- to my knuwledge,
3
they were posted on the University of Michigan's
4
website and the Orphan Works Project website and
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objection, calls for speculation.
BY .'vI.R. GOLDMAN:
Q. Can you answer it?
A. There's no way to answer that. For example, the
author could have died years before 1923, and have
been 100 years uld at the time. There's no way to
answer that question.
Q. What's the youngest that an author could be that
published a work during that time period?
MR. PETERSEN: Objection, same
objection, calls for speculation.
A. Tdon't know.
BY MR. GOLDMAN:
Q. Let me ask -- let me ask a different question.
How do you have any confidence that a persun
would know that this list exists, that the

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Filed 07/11/12 Page 63 of 100

JOIIl\' P. WILKIN
candidate list exists on the University of
Michigan or HathiTrust website?
MR. PETERSEN: Objection to form.
BY MR. GOLDMAN:
Q. Or do you have any confidence that an author or a
copyright holder would know that this list
exists?
MR. PETERSEN: Same objection.
A. I have confidence that we -- so the list doesn't
exist first of alL right, so -BY MR. GOLDMAN:
Q. When did It exist?
A. Well, when it did I think it -- it's funny too
because it was an emerging process. We had
planned to publicize the list in many places. We
asked the Authors Guild if we cuuld include the
reference to the list in their publication. We
were in the process of securing an advertisement
in Publishers Weekly, explore the possibility of
an advertisement in the New York Times. It's hard
for me to see thiS as a static question with an
answer, a list that does not exist any longer and
with a process that didn't take place to publicize
the list. I believe that we could have made the

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JOHN P. WILKI~
list well known.
MR. ROSENTHAL: What was the last word?
A. I believe that we could have -- Jercmy's
question .MR. PETERSEN: Well known.
MR. ROSENTHAL: I'm sorry.
A. Yes.
BY MR. GOLDMAN:
Q. Do you know how many -- un the list of -- from
the list of candidates that were posted on
Michigan's website, how many ofthose candidates
were wrongly identified as orphan candidates?
MR. PETERSEN: Objection to form.
A. I don't know.
BY MR. GOLDMAN:
Q. How many did University of Michigan find out
abuut?
A. I don't know.
Q. lIave any decisions been made about changes that
will be made to the determination process as part
of the Orphan Works Project?
MR. PETERSEN: Objection to form,
objection to the extmt it was asked and answered.
A. I think what I said before is true, we continue to

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62

A-1288
Case 1:11-cv-06351-HB Document 133

Filed 07/20/12 Page 1 of 19

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)

PLAINTIFFS’ COUNTER-STATEMENT IN RESPONSE TO
DEFENDANTS’ STATEMENT OF MATERIAL FACTS IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Pursuant to Local Rule 56.1 of the Local Rules of the United States District Court for the
Southern District of New York, Plaintiffs submit the following counter-statement in response to
Defendants’ Local Rule 56.1 Statement. Except where specifically defined in the chart below,
capitalized terms shall have the meanings ascribed to them in the “Definitions” set forth in
Appendix A to Plaintiffs’ 56.1 Statement filed in support of Plaintiffs’ motion for summary
judgment (“UF”).

A-1289
Case 1:11-cv-06351-HB Document 133

NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

Filed 07/20/12 Page 2 of 19

RESPONSE

The Core Functions of Academic
Libraries
1.

2.
3.

4.

5.

Academic libraries buy works for academic
and scholarly pursuits. (June 28, 2012
Declaration of John Wilkin (“Wilkin
Decl.”) ¶ 11.)
Academic libraries curate, maintain, and
preserve works in their collections. (Id.)

Uncontroverted except to the extent that the
statement as written suggests that there are
no other reasons why libraries buy works.

Academic libraries help scholars and
students identify works pertinent to their
pursuits. (Id.)
Academic libraries make works within their
collections available and accessible
consistent with applicable law. (Id.)

Uncontroverted.

The Libraries are non-profit educational
institutions. (Id. ¶¶ 8, 55, Ex. B.)

Uncontroverted.

Controverted to the extent that the
statement purports to include conduct by
libraries other than the Defendant
University Libraries and also because
certain conduct by the Defendant
University Libraries is not legal under the
copyright law.
Uncontroverted.

Acquisition of Works by the Libraries
6.

Academic libraries acquire works to satisfy
anticipated future demand by their patrons.
(Id. ¶¶ 13, 17–19, 21.)

Controverted to the extent that the
statement purports to include conduct by
libraries other than the Defendant
University Libraries and also to the extent
that it suggests that there is no other reason
why academic libraries acquire works.

7.

When there is increased demand for a
particular work, academic libraries will try
to purchase additional copies of that work.
(Id. ¶ 13.)
Each year the Libraries spend tens of
millions of dollars acquiring new works.
(Id. ¶ 14.)

Uncontroverted.

8.

2

Uncontroverted.

A-1290
Case 1:11-cv-06351-HB Document 133

Filed 07/20/12 Page 3 of 19

NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

RESPONSE

9.

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.)

Controverted. The term “most works” is
vague. In addition, the statement purports
to make broad generalizations about works
that may be subject to many different
circumstances. The Internet makes it
exceptionally easy to locate used and/or
unused copies of many out-of-print works,
including works that were digitized by
Defendants and erroneously identified as
“orphan candidates.” See UM RFA No.
5(ii); Goldman Decl. ¶ 5, Ex. C.

Deterioration of Works in the Libraries’
Collections
10.

Books, in their physical form, are
inherently subject to damage, deterioration
and loss. (Id. ¶ 22.)

Controverted to the extent that the
statement purports to call for a legal
conclusion as to the permissibility of
making copies of books pursuant to Section
108(c) of the Copyright Act. Otherwise,
uncontroverted but immaterial because
Congress provided the rules and
requirements for preservation and
replacement of books by libraries and
archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108.

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.)

Controverted to the extent that the
statement purports to call for a legal
conclusion as to the permissibility of
making copies of books pursuant to Section
108(c) of the Copyright Act. Otherwise,
uncontroverted but immaterial because
Congress provided the rules and
requirements for preservation and
replacement of books by libraries and
archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108.

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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108.

3

A-1291
Case 1:11-cv-06351-HB Document 133

Filed 07/20/12 Page 4 of 19

NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

RESPONSE

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.)

Controverted to the extent that the
statement purports to call for a legal
conclusion as to the permissibility of
making copies of books pursuant to Section
108(c) of the Copyright Act. Otherwise,
uncontroverted but immaterial because
Congress provided the rules and
requirements for preservation and
replacement of books by libraries and
archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108.

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.)

Controverted to the extent that the
statement purports to call for a legal
conclusion as to the permissibility of
making copies of books pursuant to Section
108(c) of the Copyright Act. Otherwise,
uncontroverted but immaterial because
Congress provided the rules and
requirements for preservation and
replacement of books by libraries and
archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108.

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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108.

16.

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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108.

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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108.

4

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NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

Filed 07/20/12 Page 5 of 19

RESPONSE

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.)
The immense collections housed by
academic libraries would be significantly
diminished without reliable and efficient
search methods and related technology.
(Id.)

Uncontroverted.

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.)

Controverted to the extent that the term
“until relatively recently” is vague.
Otherwise immaterial because Congress
addressed the balance between the rights of
copyright owners and those of academic
and other users in the Copyright Act, 17
U.S.C. § 101 et seq.

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.)
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.)

Uncontroverted but immaterial because
Congress addressed the balance between
the rights of copyright owners and those of
academic and other users in the Copyright
Act, 17 U.S.C. § 101 et seq.

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.)

Controverted. There are many other ways
in which a particular work might be
discovered by a researcher. See, e.g., Stiles
Tr. 51:19-60:3. In any event, Congress
addressed the balance between the rights of
copyright owners and those of academic
and other users in the Copyright Act, 17
U.S.C. § 101 et seq.

19.

22.

23.

5

Uncontroverted but immaterial because
Congress addressed the balance between
the rights of copyright owners and those of
academic and other users in the Copyright
Act, 17 U.S.C. § 101 et seq.

Uncontroverted but immaterial because
Congress addressed the balance between
the rights of copyright owners and those of
academic and other users in the Copyright
Act, 17 U.S.C. § 101 et seq.

A-1293
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NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

Filed 07/20/12 Page 6 of 19

RESPONSE

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.)

Controverted to the extent that the
statement purports to cover conduct by
academic libraries other than Defendant
University Libraries. Also, the time frame
is vague and because prior to entering into
the Cooperative Agreement with Google,
the books “converted” by the UM Library
were in large part not protected by
copyright and because the UM Library
followed the requirements of Section 108.

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.)

Controverted to the extent that the
statement purports to cover conduct by
academic libraries other than Defendant
University Libraries. Otherwise,
uncontroverted but immaterial because
Congress provided the rules and
requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108.

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.)

Controverted to the extent that the
statement purports to cover conduct by
academic libraries other than Defendant
University Libraries. Otherwise
uncontroverted but immaterial because
Congress provided the rules and
requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108.

6

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NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

RESPONSE

27.

During this time period academic libraries
lost irreplaceable volumes which, as a
result, have vanished from the academic
and cultural landscape. (Id.)

Controverted to the extent that the
statement purports to cover conduct by
academic libraries other than Defendant
University Libraries. Otherwise
uncontroverted but immaterial because
Congress provided the rules and
requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108.

Google’s Involvement in the Libraries’
Digitization Efforts
28.

29.

30.

31.

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.)
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.)
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.)
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.)

7

Uncontroverted but immaterial because
Congress provided the rules and
requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108.
Uncontroverted.

Uncontroverted, except reference is made
to the agreement with Google for proof of
its contents. See Rosenthal Decl., Ex. 80.

Uncontroverted, except reference is made
to the agreement with Google for proof of
its contents. See Rosenthal Decl., Ex. 80.

A-1295
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NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

RESPONSE

32.

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 mission of providing
specialized services to the blind or other
persons with disabilities. (Id.)

Controverted because the evidence does not
support the statement that University of
Michigan’s “primary mission” was to
provide specialized services to the blind or
other persons with disabilities. Also
controverted due to the vagueness of the
term “other persons with disabilities”
within the context of this statement.
Otherwise uncontroverted but immaterial
because Congress provided the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.

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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108 and the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.

34.

While the University of Michigan’s library Uncontroverted.
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.)

8

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NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

RESPONSE

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.)

Controverted because Congress addressed
the balance between the rights of copyright
owners and those of academic and other
users in the Copyright Act, 17 U.S.C. § 101
et seq. and specifically addressed the rules
and requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108 and the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.

The Formation of HathiTrust
36.

37.

38.

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.)
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.)

Uncontroverted.

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.)

Uncontroverted but immaterial because
Congress addressed the balance between
the rights of copyright owners and those of
academic and other users in the Copyright
Act, 17 U.S.C. § 101 et seq. and
specifically addressed the rules and
requirements for preservation and
replacement of books by libraries and
archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108 and for making books
available to the visually disabled in Section
121 of the Copyright Act, 17 U.S.C. § 121.

9

Uncontroverted but immaterial because
Congress addressed the balance between
the rights of copyright owners and those of
academic and other users in the Copyright
Act, 17 U.S.C. § 101 et seq. and
specifically addressed the rules and
requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108.

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NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

RESPONSE

39.

The University of Michigan and
HathiTrusts’s purposes are non-profit,
educational purposes. (Id. ¶¶ 8, 55, Ex. B.)

Uncontroverted to the extent that the
University of Michigan and HathiTrust are
non-profit organizations or entities, but
controverted to the extent that either or both
contracted with a commercial entity,
Google Inc., to make copies of books in
university libraries and received substantial
financial and other benefit from their
cooperative agreements with Google. See
Rosenthal Decl., Ex. 80; UF 4, 52-60. In
addition, the HathiTrust receives significant
payments from various member
organizations. UF 79-81.

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”)

Controverted. Each book that the libraries
digitized without permission represents a
lost sale for the rightsholder. UF 129, 136.

41.

The combined corpus of the HDL now
totals more than 10 million works. (Id. ¶
57.)

Uncontroverted.

42.

At least 30% of the corpus consists of
material that is clearly within the public
domain. (Id. ¶ 62.)

Controverted to the extent that the word
“clearly” is vague and ambiguous.
Moreover, works considered by Defendants
to be in the public domain may still be
protected by copyright. ALF Decl. ¶ 18,
Ex. E.

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).)

Controverted to the extent that this
statement does not take into account foreign
works. In addition, Defendants’ key witness
has indicated that estimates like these are
“pretty wild” and that a better estimate is
closer to 45%. See Declaration of Jeremy
S. Goldman (“Goldman Decl.”) Exs. A and
B.

10

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NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

RESPONSE

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-ofprint and have ceased earning any income
at all for their Rightsholders”).)
Less than 9% of the HDL corpus consists of
prose fiction, poetry and drama. (Wilkin
Decl. ¶ 67.)

Controverted to the extent that out of print
works have the potential to earn money for
rightsholders. UF 133. Otherwise,
uncontroverted but immaterial because
Congress addressed the balance between
the rights of copyright owners and those of
academic and other users in the Copyright
Act, 17 U.S.C. § 101 et seq.

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.)

Controverted to the extent that
approximately 76% of the works whose
copyrights are owned by Plaintiffs and that
were digitized and copied by Defendants
are works of fiction. See Goldman Decl. ¶
6. Otherwise, uncontroverted but
immaterial because Congress addressed the
balance between the rights of copyright
owners and those of academic and other
users in the Copyright Act, 17 U.S.C. § 101
et seq.

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

Controverted in that the HDL presents
numerous security risks. UF 134.

45.

11

Controverted to the extent that
approximately 76% of the works whose
copyrights are owned by Plaintiffs and that
were digitized and copied by Defendants
are works of fiction. See Goldman Decl. ¶
6. Otherwise, Uncontroverted but
immaterial because Congress addressed the
balance between the rights of copyright
owners and those of academic and other
users in the Copyright Act, 17 U.S.C. § 101
et seq.

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NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

RESPONSE

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.)

Controverted to the extent that Defendants
have identified at least 93 individuals with
privileged access to the HDL, including
employees and researchers performing
analysis of the contents of the HDL. UF
100. Otherwise, uncontroverted but
immaterial because Congress addressed the
balance between the rights of copyright
owners and those of academic and other
users in the Copyright Act, 17 U.S.C. § 101
et seq. and specifically addressed the rules
and requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108 and the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.

49.

Through the Internet, users of the
HathiTrust website may search for a
particular term across all works within the
HDL. (Id.)
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.)
Unlike Google’s service, the search results
do not show portions of text in “snippet”
format. (Id.)

Uncontroverted.

50.

51.

12

Uncontroverted.

Uncontroverted.

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NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

RESPONSE

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.)

Controverted to the extent that Defendants
have identified at least 93 individuals with
privileged access to the HDL, including
employees and researchers performing
analysis of the contents of the HDL. UF
100. Otherwise, uncontroverted but
immaterial because Congress addressed the
balance between the rights of copyright
owners and those of academic and other
users in the Copyright Act, 17 U.S.C. § 101
et seq. and specifically addressed the rules
and requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108 and the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.

53.

The HDL is not a substitute, in any respect,
for the Libraries’ acquisitions of incopyright material and does not diminish
the Libraries’ purchases of in-copyright
works. (Id. ¶¶ 16, 69).
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.)

Controverted. Each book that the libraries
digitized without permission represents a
lost sale for the rightsholder. UF 129, 136.

54.

Uncontroverted but immaterial because
Congress provided the rules and
requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108.

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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.

56.

Digitization has significantly improved the
quality of access for print-disabled readers.
(Id.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.

13

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NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

RESPONSE

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.)
The HDL was designed specifically to
enable libraries to make their collections
accessible in digital format to print-disabled
readers. (Id.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.

58.

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.

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.)
The Immense Public Benefits of the HDL

Controverted. Each book that the libraries
digitized without permission represents a
lost sale for the rightsholder. UF 129, 136.

60.

The HDL offers immense public benefit.
(Wilkin Decl. ¶¶ 75–77, 83–86, 100–102,
106); (Katz Decl. ¶¶ 9–17); (Leary Decl. ¶¶
9–14.)

Uncontroverted but immaterial because
Congress addressed the balance between
the rights of copyright owners and those of
academic and other users in the Copyright
Act, 17 U.S.C. § 101 et seq. and
specifically addressed the rules and
requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
Act, 17 U.S.C. § 108 and the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.

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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.

14

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NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

RESPONSE

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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.

63.

The HDL was constructed with the
objective of making the world’s first
accessible research library. (Id. ¶ 100.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.

64.

To obtain access to digital versions of incopyright 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.)
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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.

65.

66.

The HDL makes it possible for students
with certified print disabilities to achieve
their full academic and scholarly potential.
(Id. ¶ 106.)

15

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.
Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available to
the visually disabled in Section 121 of the
Copyright Act, 17 U.S.C. § 121.

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NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

RESPONSE

67.

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.)

Controverted to the extent that Mr. Wilkin
is not qualified to make such a broad
statement about the value of full-text
searching. Otherwise uncontroverted but
immaterial because Congress addressed the
balance between the rights of copyright
owners and those of academic and other
users in the Copyright Act, 17 U.S.C. § 101
et seq.

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.)
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.)
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.)
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.)

Uncontroverted but immaterial because
Congress addressed the balance between
the rights of copyright owners and those of
academic and other users in the Copyright
Act, 17 U.S.C. § 101 et seq.

69.

70.

71.

16

Uncontroverted but immaterial because
Congress addressed the balance between
the rights of copyright owners and those of
academic and other users in the Copyright
Act, 17 U.S.C. § 101 et seq.
Uncontroverted but immaterial because
Congress addressed the balance between
the rights of copyright owners and those of
academic and other users in the Copyright
Act, 17 U.S.C. § 101 et seq.

Uncontroverted but immaterial because
Congress addressed the balance between
the rights of copyright owners and those of
academic and other users in the Copyright
Act, 17 U.S.C. § 101 et seq.

A-1304
Case 1:11-cv-06351-HB Document 133

Filed 07/20/12 Page 17 of 19

NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

RESPONSE

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.)

Controverted. There are many other ways
in which a particular work might be
discovered by a researcher. See, e.g., Stiles
Tr. 51:19-60:3. In any event, Congress
addressed the balance between the rights of
copyright owners and those of academic
and other users in the Copyright Act, 17
U.S.C. § 101 et seq.

73.

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.)

Controverted to the extent that the terms
“powerful” and “important” as used in this
statement are vague and ambiguous.
Otherwise, uncontroverted but immaterial
because Congress addressed the balance
between the rights of copyright owners and
those of academic and other users in the
Copyright Act, 17 U.S.C. § 101 et seq.

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.)

Controverted. There are many other ways
in which a particular work might be
discovered by a researcher. See, e.g., Stiles
Tr. 51:19-60:3. In any event, Congress
addressed the balance between the rights of
copyright owners and those of academic
and other users in the Copyright Act, 17
U.S.C. § 101 et seq.

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.)

Uncontroverted but immaterial because
Congress addressed the balance between
the rights of copyright owners and those of
academic and other users in the Copyright
Act, 17 U.S.C. § 101 et seq. specifically
provided the rules and requirements for
preservation and replacement of books by
Libraries and Archives in Section 108 of
the Copyright Act, 17 U.S.C. § 108.

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.)

17

Uncontroverted.

A-1305
Case 1:11-cv-06351-HB Document 133

Filed 07/20/12 Page 18 of 19

NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

RESPONSE

77.

The University of Michigan developed a
project that it called the “Orphan Works
Project” (the “OWP”). (Id. ¶ 109.)
The OWP contemplated two distinct
phases. (Id. ¶ 110.)

Uncontroverted.

78.

Uncontroverted.

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.)

Controverted because in the first phase of
the OWP, the University of Michigan was
not diligent or responsible in its effort to
identity potential orphan works, a failure
that led to the misidentification of multiple
works as orphans when, in fact, their
owners were easily ascertainable. UF 123126.

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.)
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
review, with the number of users permitted
to view a given work limited at any one
time to the number of copies held by the
UM Library. (Id. ¶ 111.)
Readers would have been reminded,
through watermarking and other explicit
notices, that the books are subject to
copyright. (Id.)

Controverted to the extent that the word
“limited” in this statement is vague and
ambiguous. Otherwise, uncontroverted.

81.

82.

83.

Uncontroverted but immaterial because
Congress addressed the balance between
the rights of copyright owners and those of
academic and other users in the Copyright
Act, 17 U.S.C. § 101 et seq.

Uncontroverted but immaterial because
Congress addressed the balance between
the rights of copyright owners and those of
academic and other users in the Copyright
Act, 17 U.S.C. § 101 et seq.

After completing its initial process to
Uncontroverted.
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. ¶¶ 112114.)

18

A-1306
Case 1:11-cv-06351-HB Document 133

Filed 07/20/12 Page 19 of 19

NO.

DEFENDANTS’ ASSERTED UNDISPUTED
FACT

RESPONSE

84.

The University of Michigan suspended the
Uncontroverted.
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.)

Controverted. University of Michigan’s
Dean of Libraries testified that the
university intends to continue the OWP.
UF 127.

86.

Not a single in-copyright work has been
distributed, displayed, or performed to the
public as an orphan work. (Id.)

Uncontroverted.

Dated: New York, New York
July 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

19

A-1307
Case 1:11-cv-06351-HB Document 135

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

Filed 07/20/12 Page 1 of 29

Index No. 11 Civ. 6351 (HB)

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ AND DEFENDANTINTERVENORS’ MOTIONS FOR SUMMARY JUDGMENT

FRANKFURT KURNIT KLEIN & SELZ, P.C.
Edward H. Rosenthal, Esq.
Jeremy S. Goldman, Esq.
Adam Nelson (Law Student)
488 Madison Avenue
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

A-1308
Case 1:11-cv-06351-HB Document 135

B.

Filed 07/20/12 Page 27 of 29

The HDL’s Uses For the Blind Are Not Protected Fair Use
Notwithstanding NFB’s endorsement of the Chafee Amendment, Intervenors argue that

even if the Defendant libraries are not “authorized entities” within the meaning of Section 121,
the use of the HDL by blind persons constitutes fair use under Section 107. Intervenors’ Mem.
at 16. This argument fails for many of the same reasons that Defendants’ uses for the blind are
not covered by the Chafee Amendment.
The legislative history cited by Intervenors supports the proposition that the making of a
single copy of a single work at the request of a blind individual is fair use. See Intervenors Mem.
at 17 n. 73 (citing House Rep. No. 94-1476 at 73, which states: “While the making of multiple
copies or phonorecords of a work for general circulation requires the permission of the copyright
owner, a problem addressed in [a previous proposed section addressing copies for the blind], the
making of a single copy or phonorecord by an individual as a free service for a blind persons
would properly be considered a fair use under section 107.”) (emphasis added).17 There is no
support for Intervenors’ or Defendants’ claim that fair use permits university libraries to
preemptively digitize, store and replicate millions of copyrighted books in a digital format that
includes universally-readable image and text files in case a person with a print disability may one
day request access to one of the works.

17

Intervenors’ reliance on Sony, 464 U.S. at 417, is misplaced. Intervenors Mem. at 17.
In that case, each time the Supreme Court references copies for the blind it refers to the making
of a single copy for one individual blind person. See Sony, 464 U.S. at 455 (“Making a copy of a
copyrighted work for the convenience of a blind person is expressly identified by the House
Committee Report as an example of fair use.”); id. at 465, n. 12 (“For example, ‘the making of a
single copy or phonorecord by an individual as a free service for a blind person’ would be a fair
use’”); id. at 470, n. 21 (“The mention in the Senate and House Reports of situations in which
copies for private use would be permissible under the fair use doctrine-for example, the making
of a free copy for a blind person.”) (emphasis added).
23

A-1309
Case 1:11-cv-06351-HB Document 135

Filed 07/20/12 Page 28 of 29

Application of the four factors in Section 107 confirms that the HDL’s uses for the blind
do not constitute fair use. With respect to the first factor, Defendants’ uses for the blind
admittedly serve a purpose that benefits society, but because they exceed the allowances of
Section 121, Defendants are seeking to avoid paying the customary fee. See Harper & Row, 471
U.S. at 562 (“The crux of the profit/nonprofit distinction is not whether the sole motive of the
use is monetary gain but whether the user stands to profit from exploitation of the copyrighted
material without paying the customary price.”). Furthermore, there is nothing transformative
about converting the words on a printed page into digital text as changing the medium of a work
does not transform it. Texaco, 60 F.3d at 924.
The analysis of the second and third factors is no different than the analysis of the HDL
above. The works copied include a large variety of books including highly expressive works,
both fiction and non-fiction. And, once again, millions of books were copied in their entirety by
Defendants, and HathiTrust grants persons with print disabilities access to the full text of those
works, as well as the image files.
Finally, with respect to potential market harm, in addition to the various harms discussed
above and in Plaintiffs’ motion for summary judgment, HathiTrust’s provision of image files to
persons with print disabilities for the purpose of allowing them to create large print versions of
the books creates “an infrastructure that would directly compete with and impair important
growth businesses of publishers for [] large-type books[.]” Statement of the Association of
American Publishers on the NII Copyright Protection Act of 1995 before the House
Subcommittee on Courts and Intellectual Property, Feb. 8, 1996, available at
http://judiciary.house.gov/legacy/441.htm (testifying that one of the key changes to the original
proposed bill was to “avoid impairing large-type” publishing).

24

A-1310
Case 1:11-cv-06351-HB Document 136

Filed 07/20/12 Page 1 of 16

KI L P ATIlI C K TOW NS END & STOC KTO N LLI)
Joseph Petenen (l P 9071)
Robert Potter (R P 575i)
11 14 Avenue of the Amerieas
Nc',,"' York, NY 10036
f clephone: (2 [2) 775-8700
Facsimile: (2 [2) i7S-8800
Emai l: jpctersen(rijkilpatricktownsend.com
Joseph M. Beck (admitted pro hac vice)
W. Andrew Pequignot (admitted pro hac vice)
Alli soll Scott Roach (admitted pro IJUc ~'ice)
1100 Peachtree Street Suite 2800
Atlanta, Georgi a 30309-4530
Telephone: [phone]
Facsimile: [phone]
Emai l: jbcck@ki lpatricktownsend.com

Altorneysfor Defelldants
UN ITIW ST ATES DI STRI CT CO URT
SOUTHERN DISTRJCT OF ~E W YO RK

THE AUTHORS GU ILD, INC" ET AL.,
Plaintiffs,

Case No . I I eiv. 635 1 (HB)

v.

HATHlTRUST, ET AL.,
Defendants.

DECLARATIO N O F P. BE RNT HUGENHO LTZ

[~OPP OS ITIO N

TO l' LAlNnrFS ' MOnON fOR SUMM ARY .JUDGM ENT
I, P. Beml Hllgcnholtz, pursJ<lllltu 28 U.S.C, § 1746, hereby decla re as follows :
1.

I am Professor of Copy righI Law at the University of Amsterdam , Faculty of

Law, and Director of its Institute for Information Law (lViR). [ am also Professor of Law at the
University of Bergen (Norway). I submit this declaration in opposition 10 Plaintiffs ' motion for

A-1311
Case 1:11-cv-06351-HB Document 136

Filed 07/20/12 Page 2 of 16

summary judgment. Unless otherwise noted, I make this declo.ration based

UpOIl

my own

personal kno wledge.

A.

Backgrollnd
2.

In 1989 1 received my doc tor's degree cum laude from the University of

A msterdam. I have w ri nen numerous books, studies and scholarly articles on a variety o f topics
involving copyright, illfonn ation tec1Ulo logy, new media and the Internet. At the Universities of
Amsterdam and Bergen I teach courses in copyright law, international eopYrlght law and
(occasiona ll y) industrial property law. I also regularl y lecture or have lectured regularly at the
University of Helsinki, Monash University (Mclboume, Australia), Charles University (Prague),
and tilt: MUliidl IP Law Cenlre oflhe Max Planck Institute for Intellectual Property (Munich).
3.

I was a member o flhe Am "tcnlam Bar ami p<lItller ufth t:: law firm

or Stihbe

between 1990 and 1998. Since 2003 I have b een a depu ty judge flt (he Coun of Ap peal in
Arnhcm.
4.

I am a mcmbcr ofthe Dutch Copyright Committee that ad vises th e Mi nister o f

Justice of the Netherlands, and havc regu larly acled us a consultant to the World Intellectual
Property Organisation (WIPO ), the European Commission, and severnl national govemments.
have been on international missions in several countries representing WlrO, and am a regular
spc(lkcr at intern(ltional conferences, including the annual Fordham conference oll illternatio lial
IP Law and Policy.

5.

I am the co-author '.\'ilh Professor Paul Gold stein

~Stan ford

University) of

Inlernallonal Copyright (2nd edition, O xford University Press, 2010), which is one ofthe leading
treatises on international copyright law. I am the co-author and co-editor with Profess()f Thomas
Drcic r (Technical Un iversity of Ka rlsrul1c) ofCollcise European Copyright (Kluwcr Law

2

A-1312
Case 1:11-cv-06351-HB Document 136

Filed 07/20/12 Page 3 of 16

International, 2006), o ne oflhe lead ing oommcntm'ics on European
G~lt:rd l

eopy'; ~ht

law. I am the

Editor uf lhe (lGIIJculic Information Law Seri~. which is published by Kluwcr Law

Intemarlflnal , :'!nO memher of the hoard of editors uft hl: JuullIal orWmh.l llltdh:·ctual Properly.
whi ch is published by Blackwell.

6.

I am a member of lhe Advisory Boards ofthe Max Planck [nStilUte for InteJlectual

Properly Law (Munich) and the Centre for Intell ectual Property and In fo rmation Law (CIP1L) of
Cambridge University. A true and correct COpy of my curriculum vitac is attached hereto as
E:<.hibitA.

7.

I have bl:l,;ll a::,.kcd by the defendant librruics (the " Libraries") to add ress certain

statements by Proft.'''!lr [)anid Gt:r\'ais in his J une 28. 20 12 declaration ("Expert Report"). In
particular, I have been asked to comment upon Whclilcr Ihe European cnll (:(! tivt! lict:llloo ing
regimes identified by Professor Gervais have any ap plication to a sevice such as that offered by
the Libraries in connection with their HathiTrust Digital Library or " I-IDL." I have also been
asked to provide additional background on tbe legal status quo of mass dlgitlz3tion o f library
book holdings in Curope. I am being compensated for m y time at the r(lle of€2S0.

8.

My unde rs tanding is that th e Libl'ilries engage in thc following limited acti vities

with 1
'tS]lt:Cl to the in-cllpyright works in lhe HDL:

•
Fu ll-Text Search . The Lioraries' patrons may search for aile or more terms or
phrases across all ,",orks withi n the IlOL. f or those works that arc not in the public domain or for
which the eopynghl holder has not expressly authorized usc, the search resu lts indicate only the
pilge numho:rs con which a It:m l is found within a palticular book and the number oflimes it
appears on each page. Senrch result> do IlOt show sentences, "snippets." or other selections of
[ext, and patrons do not have electronic <lece.~s \(1 any c( lflyri ghlt:d COIILt:11 1 wi III ill .~u(;h works
(unless they arc users with certi fied print dis3bi lities). In other words, there is 110 copyrighted
text disp layed 0 11 the com puter screen or available for print.
•

Preservation. The HDL is a sa fegum"d against {he on -going loss of print books
10 make copies for. infer alia. re placing a work thot is damaged,
deteriorated. 10S l, or stolen , and a re placement copy cannOI be obtained at a fair price.

and enables the Libraries

3
LtiID.IIIJb79ll17

A-1313
Case 1:11-cv-06351-HB Document 136

Filed 07/20/12 Page 4 of 16

•
Access fur " C,'SU II S with 1
)J·iu l disab ilit ies. The Libraries, by digitit.:ing works,
enable Ihem to be converted into alternative formats fo r the blind and oth er persons with
disabilities enabling such persons [0 have equal oc!';css 10 lhe v.olks within lhe L ibraries'
collections.

B.

O l)illioll
9.

Professor Gervais states in his declaration, in paragraph I I, that "the type of

copying involved ill lhis case (mass di gili;wtion o f libm!'y books) is alrclIdy licensed in n number
of ol ht:r

cO ll nlri ~."

Prufl:Ssor Gerva is the n concludes in th is same paragraph thallhis fact

sliggests that ''t here lire "hc::nll1tivt:!'.

\0

Defendants' (and Google's) un ilateral decision to digitize

copyrighted works."
10.

Professor Gervais' refere nce 10 the practices of other cOlintries (h,,; principally

fucuses o n Europe, Wl1ich fall s within my area of expertise) with respect to library digiti2:ltion is,
in my yicw, incomplete. First, Professo r Gerva1s does not mention those co untries whose laws
directly authorize. without permission of rights holders, the digitization of library materials for
tht: uses made by the Libraries in this action. Ignoring this issue makes it secms like thc trend in
Europe is In Mlnpt a licensing regime for Lhe ty pcs of uses made by thc Libraries when this is, in
fact, not the case.
J I.

Seco nd, Professor Gervais does not mention Ihat in many

i nstance~

Eurorc:-m

collective rights management organizations (CMO's) lack the legal mandate to grant licenses
perlll itt i n~

digilization and digital uses of entire hbraty holdmgs (i.e., the authority of such

CMO's is limited to o nly a small portion of the library's collection). In such instanecs, such
CMO's could not possibly license the uses madc by the Libraries in this action bccnusc those
uses nt:ct:s~ ar i ly t1cpcml on the Libraries hilving digiti 7.ed the enti rety of their collections.
12.

Third, Professor Gc::rvais docs lJul ml,;ntion that the countries that have adopted a

licensing regime for large scale digirization have done

4

"II for Ihe purpost: tlf enabling full access

A-1314
Case 1:11-cv-06351-HB Document 136

~ ie\v

Filed 07/20/12 Page 5 of 16

of the uititiz.cd works. Such regimes arc in fact not concerned with the types of very

limited u.c:c." marie hy the HD L ofin-cupyright works. I discuss each of these )Xl ints in further
detail below.
Europea n Law Au!horizt's Lib r luics to Digirize T h('k C o ll ec rl o n ~ for
Purposes of ' )reser vatioll, Access to Indi viduals W ith Prill! Disa bilities and
SC:lI·ch.

I.

13,

Art icle 5(2)(c) of the EU Directive On Copyright in rhe lnf( )nllatioll Socit:l),

allows EU \I1 elll ber Stales to provide for limitations and exceptions "in respeet o f spcci lk . aets of
reproduction made by publicly accessiblc librnrics, educational establ ishments or museums, or
by archives. which arc not

fo~

d irect o r indirect economic or commerci a! advantage,'" 1
IIIII1e

with the quoted provision thc laws of copyright in n majori ty of Member States a llow libraries
il nu other L\ultural heritage institutions to d igi l'i 1.c their hold ings for preservati on and conselVatio n

purposes. Such countries include , mtcr al ia, (lcn nany, France, Spain, and the Netherlands. See
Westkamp report, http://'k\vw. ivir.nVpublicmionslgu ibaultnnfoSuc_Sludy_2007 pd r, p. 22 rr Til
c() lIlltri~!)"

wllere s lIch limitations or exceptiol/!>' exist,

sllbject to tile comlit;olls

.~·rated

ill th e l aw,'

11 0

Hbra rk~

are f rn 10 m gflge in digili!{I(ion

copyright licenses and/()r Nlflllilwra film arc

tlleref ore reqlli/·ed.

14.

Article 5(3)(n) of tile EC Directive on Copyright in the Infonnntion Society

similarl.v allows EU Member S:ates to provide for lim itations and exceptions pcn nitting libraries.
ed ucm ional

~':lb 1i<:hml:n t s

dcd icaled termina ls on

anti archi,'cs ttl make their holdings acc~s i bl c oillinc by way of

prcll1 i s~

for the purpose o fJ'c.<:c:m :h or pri v<Jlt: study. Thi s Jlm v i ~i(J1I has

been implemented by most Member States. Agoill,

e_n~lIIl' rI'lIIlSeS

1ViJ/ I/o/be lia M ed, ,wr r,·

Directives arc legal instruments adopted by the Europem Union thaI oh liec FI J \1t:lll h~ Stales
to transpose the rules of a directive w ith in the timc limits speci fi ed therein. Directives are not
directly binding upon the citizens of the EU. and implement31 into national law need not be
ion
dOlle literally.
I

5

A-1315
Case 1:11-cv-06351-HB Document 136

Filed 07/20/12 Page 6 of 16

remlllre,.atiolf required. Sec Westkamp rcport,
http://www.ivir.nl/publ iC<1.tions1guibaultllnfoSoc_ StudL 2007.pdf. p. 45 ff.
15.

Aliidt: 5(3)(b) ufLht: EU Directi ve on Copyright in the In formatio n Society

<ldditionally <1110'.',:5 Ell Mfmlbet StaTe~ 10 provide for limitations and exceptions

p cnnilti ll ~

" uses, for the benefit orpeople w iT a disabil ity, which arc directl y related to the disability and of
h
a non-commercial nature, to the ex tent required by the specific disabi lity." Article 5(3)(b) has
been implemented in some form in the copyright laws of all EU Member States. See \Vestkamp
report, http://www.ivir. nl/publications/guibaultllnfoSoc Study 2007.pdt; p. 35 ff:

16.

While the EU Directi ve on Copyright in Ille Information Society hamlOnizcs the

basic economic rights protected u nder copyright (i.e. the rights of reprod uction, communication
to rhc public and (Iislribution) , The Direct ive d(lts

!HII

aduress Ille speci fie question of whether

enabling (library) users to search the digitized library holdings constitutes a separnte restricted
2Ct.

Howcver, two recent decisions ofille CoU\1 Qf Justice ofrhe European Union (!nfopaq

/ntcl'I1ational ...l IS II. Dallske Dagblades Fore/ling, Court of Justice EU, 16 July 2009, Case C5/0 8; /1I(opaq /nternalional AIS

1'.

Dal1ske Dagb/ades Forening, 17 Janumy 20 12, Case C-

302/1 0) offer somc guidance on this issue.

17.

It! these cases, the Court of Justice opined on whether an infOl1llario n search and

retricval service that in\iol\icd tht:: scarlllillg uf publ ishcd news miides. ilnd IVhich produced

OUlpUI in (he form of II-word keyword-in.contexi extracts, amoun1ed t(J unauthorized
reproduction. According to the Court, this was the case, " if the elements thus reproduced are the
expression of the intel lectual creation of their author:' However, the! mere tcchnical acts of 'data
capture' were deemed to be exempted pursuan t to Article 5(1) of the 8U Ui rccti\'c on Copyright
in the InfOlmation SoelCty, which exempts certain "temporary acts of reproduction 1... J which

6

A-1316
Case 1:11-cv-06351-HB Document 136

Filed 07/20/12 Page 7 of 16

arc transient or incidental land J an Integral and essential part of n technological process." Note
tllat Article 5( I) of the Directive is a mandatory limitntion to copyright, and theretore has becn
impl emen ted in all copyright laws of the EU Member States.
18.

From the holdillgs

i ll

tln::se !.:<lSCS Olle might in fer that an information search and

retrieval service that does nCll pmdllcc (potcl1ti,llly co[Jyrighl-rek:vallt) extracts, but limits search
resu lts to bibliographic refere nces (e.g. page numbers

~ nd

occlllTencc) lhat do not q ualify

~s

'intellectual creations', as docs the HDL, would Dot be deemed by the Court of Justice to intlingc
the reproduction right.

19.

Given the scope o rthe limitations and exception s to copyri ght set out above (pars.

13-- 17), it is in my opinion unlikely that a library operating in an EU Member State where these
limitations and exceptions exist in national law, would agrec to a collective license for the
activiti", and

senl i ~s

that the HDL

rc.~tricLs

itsd rto,

i.~.

fu ll-te.'(t search, preservat iD!l, lind

providing access to the visually bandicapped. This is because in these EU Member States the

libraries would appear to have the right to make such uses without authorization o f\ he copyright
holder.

2.

Most Europea ll CMO's Lac k Legal Ma nd ate to License the Digitizatioll o f a
Lib r aries' E n tire C ollcctlo n.

20.

Whereas mallY public libraries, broadcasting and film archives, museums and

other cu1 mra! heritage institmions in Eumpe are currently c n ~a!:lul in mass digilization or thei r
hold ings (which by necessity include large volumes of orphan works), or arc taking concrete
steps towards mass digitization, few o f these projects operate under a collective license. While in
some of these cases libraries will rely on statutory exceptions that allow them to digitize and
make available di.gitized ho ld ings to library patrons (sec above, o:It par. 14 ), in other cases where statuto!"y exception arc not available or do not provide surficicnt latitlldc - collective

7

A-1317
Case 1:11-cv-06351-HB Document 136

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li(;cnsing initiatives have not occuncd or arc highly problematic, because existi ng collective
righL" management orgalli/--<lliuIlS (C ~ O's) lack the legal mandate to grant licenses pcrmilting
d igitizalion and
21.

digl t~ll1ses

of entire lihrary holdings.

In most EU countries, CMO's fha t operme in rhe field o f ['II"int-relatcd uscs, such

as the Rcpmgt:lphic R igh ls Orga nizations (" RRO's") memioned in the Ex.pen Re pon, generally
operate undcr D. conl" ractual mandate the scope of which is determined by the terms of the
standard contracts of adherencc signed by authors and/or publishers. Until recently, these tenus
allowed these CMO's merely to license and eoliect monies for non-d igital print-related uses,
such as lihrary photocopying.
22.

Whereas some CM(Y ~ ha \JC r:::ccllIl y expanded thei r cOlltmctual mandate to

include cert ain d igital uses, this e nhanced mandate will us ual ly no t extend
but still in-copyright works in the holdings of the librari es.

~ i n ce

1 III U ~ t
0

or the uiller,

most CMO's thAI operate in the

print-related ticld were established in the 1970' s or onward;. and therefo re most likely will not
have sig ned up the authors o ft hesc o lder works.

23.

Th is lack of contractual mandlltc is particularly critical in the fiel d o f seientitic

p ublicalioll. Wh ile under 1he copyright laws of many European countli es d igital rig.hts in old er
(pre-di git3 I era) pllbliultions wi ll gC!lL;J""dlly belong to the authors (not the publishers). few
scientific authors have actually entrusted their rights In CMO·s optrnting ill ih is fi eld. With
CIllO 's i /l copubll! %fJeriIFg digjt jz.otioll IiU ll fie'. 'lull CQI·(!r
'

(,W'II 11

s lIbs
.ln"';(l1P(lrt of 1I1(!

el/ t;re cm·pm· of ;I/ ~capyrighf works Illul ha ve beell (or nrc ta be) digitizel' by ,IU!
"olll/I raty ca llce/iI'c

24.

lit:clI:'>'i,,~

lihra rie!'~

of complete Jibn lry Iw lding.'! is dllSlilwll lo fail.

As the examples g iven in the Expert Report il lustrate, such collective iiecnslI1g

approaches will develop only in countries that have speeial lcgislation

8

In

plnce thnt allows

A-1318
Case 1:11-cv-06351-HB Document 136

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CMO's to negut iatc l iccll~t:~ without adIXllHlIC legal mandate. This is notably the case in the
Nordic counfTie.~ ,

.~ uch

as Ocnmark , Norway and (soon) Swt::lien, whcre tilt;: ~ystclTI of C;:Xll;:1ldt:tl

colle::tive licensing (EeL) described in the Expcn Repon on p . . 15 fT. ,

wa~

in venTed, anti is now

being applied to somc mass c.igitization projects in these countries.
Et:L 's I:h,ve Been C rea ted lIy L( gisiation f OI· th e Purpose of A llth o rizill~
A('('css 10 the Text Itself.

3.

25.

In his report, Professor Gervais describes various recenl or on-going initiatives

Inwards 311 EC' I. I1H lclcll Jf (;nlk:cli ve li(;ellsing of mass digitization of library book holdings in
Euro~n

countries. Such initiativcs, although still rlire, indeed exi.st in respee: of II

~Tllil l l

number of library book digitization projects, such as the projects mentiQne(j in the Expert Report,
paras. 4 4-4&. Such li censing - whethcr collective o r individ ual - will as a maller of course arise
only for uses thm arc eithcr not exempted by national copyright laws. or that exceed the
boundmi cs of exist ing copyright excmptions.2
26.

TIle EeL system dcscritxxl in the Expert Report as an example of successful

cullt:cti\'c liccnsing u f lndSs digitization projects is in fact a largely regulatory solution that
requires a solid statutory basis in the law. The copyright laws u f thc Nunlil,; ctJLHltri(;~ cllumerdlt:
sc\'cral specific uses by lion-profit entities, such as li braries and public brofldeasters, for which
extended collective licenses may be granted by e ligible CMO's.
27.

For example, eligible CMO's must adequately represcnt the right holders

In

the

relevant field of hcensi ng. Any ECL that a CMO will enter into with non prof'it entitles will be
bindi.ng not only upon the right holders it reprcsents, but upon non-reprcsenled (e.g., foreign
and/or ' orphaned ') right holders as wel l. For these non-represented right holders the ECL will
2 For

instance, the Swedish Memorandum of Understanding mentioned in the Expert Report in
para. 45 has been signed against a background o f Swcdish copyrigh: law th!ll docs not provide
for a copynght exception allowing libraries to digitize their own holdings. See Wcstkamp report,
hUp:/Iw",w. ivir. ul/publiC<ilionsfguibaultlI nfoSoc _ Study_ 2007,pdf, p. 24.

9

A-1319
Case 1:11-cv-06351-HB Document 136

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have legal effect similar to that of a compulsory license. For these Dnd o ther reAsons, the Ee L

mudd

rClllaill~

Nordic

~r h erc.

28.

controversial and is unlikely to be adopted in many EU countries outside the

As the examples of Ee L' s de~crihed in the Expert Report reveal, the scope oflhe

EeL's clIlTcntly in place in the Nordic countries well exceed the types of very limited lI ses made
by the HUL of 111 copyright works (i.e., preservA tion, search-only and access to the visually

impaired). TIlis is notably the case for the ' Bokhylln' book digitization project in Norway
(Expert Report. par. 46). which allows fu ll-text viewing of all books digiti7..cd, and also for the
lIlul:h old!;:r

Dalli~l l

agreement that allows the reproduction of copyright works for interlibrary

loans anti the rcrmliu!.;t ion Hf .~hurt eAcerpt.s (Expert Report, par. 47). The Swedish EeL
initiative (Expert Report, par. 45) wou ld also allow full-text aa:t:s....., hut pn.,:sl.:lltly awaits
runelldmelll of the Swed ish Copyright Aet be fore it ean become operational .

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

Executed: July 19, 2012
nl\Oltz

10

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EXHIBIT A

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Curriculum Vitae
1 Family Name:

Hugenholtz

2 First Name:

P. Bernt

3 Date of Birth:

23 august 1955

4 Nationality:

Dutch

5 Civil Status:

not married

6 Education / Professional Studies:
1973-1980
1983-1984
1989

Master of laws, University of Groningen
Visiting scholar, University of California, Los Angeles
Doctor of law (cum laude), University of Amsterdam

7 Membership of Professional Bodies:
Vice-chairman, Vereniging voor Auteursrecht (Dutch chapter of ALAI) ; Founder,
Vereniging voor Media- en Communicatierecht (Dutch Association for Media and
Communications Law (VMC); General Editor, Information Law Series, Kluwer Law
International; Member, Scientific Council, Max Planck Institute, Munich; Member, Advisory
Committee, CIPIL, Cambridge University; Member, Board of Editors, Journal of World
Intellectual Property (JWIP); Member, Association Internationale pour la Protection pour la
Protection de la Propriété Industrielle (AIPPI) ; Member, Association for Teaching and
Research in Intellectual property (ATRIP).
8 Present Position:
Director, Institute for Information Law, University of Amsterdam, Faculty of Law
Professor of Intellectual Property Law, University of Amsterdam, Faculty of Law
Professor II, University of Bergen, Faculty of Law
9 Key Qualifications:
Prof. Hugenholtz is a leading expert in the field of Information Law. He is the author of
numerous books, published articles, book chapters, reports and studies, and the co-author of
European Copyright Law (2006) and International Copyright (2010). He has acted as a
consultant to the World Intellectual Property Organisation (WIPO), the European
Commission, the European Parliament and several national governments, and has produced
studies for the European Commission, the European Parliament, WIPO, UNESCO and
various Dutch government agencies. He is a member of the Dutch Copyright Committee that
advises the Minister of Justice of the Netherlands. He is a regular invited speaker at
international conferences, including the annual Fordham Conferences on International
Intellectual Property Law & Policy. Prof. Hugenholtz teaches courses on International and
European copyright law at the University of Amsterdam, the Munich IP Law Centre, the
University of Bergen (Norway), Monash University (Melbourne), and occasionally at other
universities. Prof. Hugenholtz is also an adjunct-judge at the Court of Appeals in Arnhem.

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10 Professional Experience Record:
1981-1983

1984 - present
1990 - 1998
1992 - present
2007
2008 - present

Legal Advisor, Ministry of Culture, Dept. of Radio, Television and
Press, Rijswijk (legal and policy matters in the field of media and
copyright law)
Professor of Intellectual Property Law, University of Amsterdam,
Institute for Information Law
Advocate (attorney, specialized in IP law), Stibbe, Amsterdam
Director, Institute for Information Law, University of Amsterdam,
Fritt Ord Professor, University of Bergen, InfoMedia Institute
Professor II, University of Bergen, Faculty of Law

11 Publications1
Books (English)
(with A. W. Hins) The Law of International Telecommunications in the Netherlands, Nomos,
Baden-Baden 1988.
(with E.J. Dommering (eds.) ), Protecting Works of Fact: Copyright, Freedom of Expression
and Information Law, Information Law Series, Vol. 1, Kluwer, Deventer/Boston 1991.
(with W.F. Korthals Altes, E.J. Dommering, and J.J.C. Kabel, eds. ), Information Law
towards the 21st Century, Information Law Series, Vol. 2, Kluwer, Deventer/Boston 1992.
(ed.), The Future of Copyright in a Digital Environment. Proceedings of the Royal Academy
Colloquium organised by the Royal Netherlands Academy of Sciences (KNAW) and the
Institute for Information Law (Amsterdam 6-7 July 1995), Information Law Series, Vol. 4,
Kluwer, The Hague/London/Boston 1996.
(ed.), Copyright and Electronic Commerce. Legal aspects of electronic copyright
management, Information Law Series, Vol. 8, Kluwer, The Hague/London/Boston 2000.
(with L. Guibault, eds.) The Future of the Public Domain - Identifying the Commons in
Information Law, The Hague, Kluwer Law International, 2006 (377 pages) .
(with T. Dreier, eds.), European Copyright Law, Concise IP Series, vol. 2, Kluwer Law
International 2006 (ISBN 90-411-2384-9), 476 p.
(with Paul Goldstein), International Copyright. Principles, Law, and Practice, Second Edition,
New York: Oxford University Press 2010, ISBN 9780199737109, 592 pp.
Selected articles and book chapters (English)
Copyright Aspects of Data Banks, Rapport néerlandais, ALAI Congrès 1989, L’informatique
et le droit d’auteur, Cowansville (Québec) 1990, p. 390-397.

1
More extensive listings of publications in Dutch and English are available at
http://www.ivir.nl/medewerkers/hugenholtz.html and http://www.ivir.nl/staff/hugenholtz.html.

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‘Convergence and divergence in intellectual property law: the case of the Software Directive’,
in: W.F. Korthals Altes, E.J. Dommering, P.B. Hugenholtz, J.J.C. Kabel (red.), Information
law towards the 21st century, Deventer/Boston: Kluwer Law and Taxation Publishers 1992,
p. 319-324.
‘Database protection in the EC’, AIPPI XXXVe Congrès - Tokyo 1992, Annuaire 1992/III,
Zurich: AIPPI 1992, p. 341-343.
‘Copyright, document delivery and the information superhighway’, in: Nordic Conference on
Copyright Issues, Proceedings of a conference organised by NORDINFO, Espo (Finland)
1995, p. 119-129.
‘Adapting copyright to the information superhighway’, in: P.B. Hugenholtz (ed.), The future
of copyright in a digital environment, Den Haag/London/Boston: Kluwer Law International
1996, p. 81-102.
Copyright Problems of Multimedia. Licensing in the digital era, IRIS Legal observations of
the European Audiovisual Observatory, 1995 Special issue, p. 27-33.
Copyright and Databases, Report on the Netherlands, in: M. Dellebeke (ed.), Copyright in
cyberspace, ALAI Study Days, Amsterdam, 4-8 June 1996, Amsterdam: Otto Cramwinckel
1997, p. 491-497.
‘Fierce Creatures. Copyright Exemptions: Towards Extinction?’, keynote speech,
IFLA/IMPRIMATUR Conference, Rights, Limitations and Exceptions: Striking a Proper
Balance, Amsterdam, 30-31 October 1997.
Implementing the Database Directive, in: Jan J.C. Kabel and Gerard J.H.M. Mom (eds.),
'Intellectual Property and Information Law', The Hague/London/Boston: Kluwer Law
International 1998, p. 183-200.
‘Electronic Rights and Wrongs in Germany and The Netherlands’, Columbia - VLA Journal of
Law and the Arts 1998, Vol. 22, No. 2, p. 151-159.
‘Code as Code, or the End of Intellectual Property as We Know It’, Maastricht Journal of
European and Comparative Law1999, Vol. 6, no. 3, p. 308-318.
‘Copyright and its Limitations in the Digital Environment’, paper presented at UNESCO
INFOethics 2000 Conference, Paris, 14 November 2000.
Copyright, Contract and Code: What Will Remain of the Public Domain?, 26 Brooklyn
Journal of International Law [2000], p. 77-90.
Copyright and Freedom of Expression in Europe, to appear in: Rochelle Cooper Dreyfuss,
Harry First & Diane Leenheer Zimmerman (eds.), Innovation Policy in an Information Age,
Oxford: Oxford University Press (2000).
‘The Great Copyright Robbery. Rights allocation in a digital environment’, paper presented at
conference A Free Information Ecology in a Digital Environment Conference, New York
University School of Law, 2 April, 2000.

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‘Why the Copyright Directive is Unimportant, and Possibly Invalid’, European Intellectual
Property Review 2000, p. 501-502.
‘Chronicle of The Netherlands. Dutch copyright law 1995-2000’, Revue Internationale du
Droit d’Auteur 2001 (187), p. 111-175.
(with Stephen M. Maurer & Harlan J. Onsrud) , ‘Europe’s database experiment’, Science,
Vol. 294, 26 October 2001, p. 789-790.
‘Copyright and Freedom of Expression in Europe’, in: N. Elkin-Koren & N.W. Netanel (eds.),
The Commodification of Information, Information Law Series, Vol. 11, The
Hague/London/New York: Kluwer Law International 2002, p. 239-263.
(with M.J. Davison), ‘Football fixtures, horseraces and spin-offs: the ECJ domesticates the
database right’, European Intellectual Property Review, 2005-3, p. 113-118.
‘Abuse of Database Right. Sole-source information banks under the EU Database Directive’,
in: Howard Shelanski, Francois Leveque (eds.), Antitrust, Patents and Copyright,
Cheltenham: Edward Elgar 2005, p. 203-219.
(with N. Helberger, N. Dufft & S.J. van Gompel) ‘Never Forever: Why Extending the Term
of Protection for Sound Recordings is a Bad Idea’, European Intellectual Property Review,
2008-5, p. 174-181.
(with N. Helberger) ‘No Place Like Home for Making a Copy: Private Copying in European
Copyright Law and Consumer Law’, Berkeley Technology Law Journal, Vol. 22, 2007 no. 3,
p. 1061-1098.
(with R.L. Okediji) ‘Contours of an International Instrument on Limitations and Exceptions’,
in: Neil W. Netanel (ed.), The Global Development Agenda. Global Intellectual Property and
Developing Countries, Oxford: Oxford University Press 2008, p. 473-497.
(with Stef van Gompel) ‘The Orphan Works Problem. The copyright conundrum of digitizing
large-scale audiovisual archives, and how to solve it’, Popular Communication - The
International Journal of Media and Culture, 2010-1, p. 61-71
‘Audiovisual Archives across Borders. Dealing With Territorially Restricted Copyrights’, in:
Digitisation and Online Exploitation of Broadcasters’ Archives, IRIS Special p. 49-54
‘Chronicle of the Netherlands.Dutch copyright law, 2001-2010’, Revue Internationale du
Droit d’Auteur (RIDA), No. 226, Octobre 2010, p. 280-349
‘Limits, limitations and exceptions to copyright under the TRIPS Agreement’. in: Carlos M.
Correa (ed.), Research Handbook on the Protection of Intellectual Property under WTO
Rules. Intellectual property in the WTO, Vol. I, p. 319-342.
‘Codes of Conduct and Copyright Enforcement in Cyberspace’, in: Irini A. Stamatoudi (ed.),
Copyright Enforcement and the Internet, Information Law Series, Vol. 21, Alphen aan den
Rijn: Kluwer Law International: 2010, p. 303-320

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Selected studies and reports (English)
Intellectual Property Rights on the Information Superhighway, Report to the European
Commission (DG XV), 1994.
(with Dirk J.G. Visser), Copyright Problems of Electronic Document Delivery, Study
prepared for the European Commission (DG XIII), 1995.
Legal project lead, IMPRIMATUR (Intellectual Multimedia Property Rights Model And
Terminology for Universal Reference), multidisciplinary project on Digital Rights
Management, European Commission, 4th Framework program, 1995-1999.
(with K.J. Koelman) ‘Online Service Provider Liability for Copyright Infringement. Study
prepared for WIPO Workshop on Service Provider Liability’, Genève: WIPO 1999.
Copyright Aspects of Caching, Digital Intellectual Property Practice Economic Report
(DIPPER), Study prepared for the European Commission, 1999.
(with R.B. Bakels), ‘The patentability of computer programs’, study commissioned by the
European Parliament, 2002.
(with L.M.C.R. Guibault; assisted by M.A.R. Vermunt & M. Berghuis), ‘Study on the
conditions applicable to contracts relating to intellectual property in the European Union’,
study commissioned by the European Commission, 2002.
(with L.M.C.R. Guibault and S.M. van Geffen) ‘The Future of Levies in a Digital
Environment’, study commissioned by Business Software Alliance, March 2003
(with L. Guibault), Copyright contract law: towards statutory regulation? Study conducted on
commission for the department of Scientific Research and Documentation Centre (WODC) of
the Dutch Ministry of Justice, August 2004.
(with Mireille van Eechoud et al.) The Recasting of Copyright & Related Rights for the
Knowledge Economy, report to the European Commission, DG Internal Market, November
2006, 308 p.
(with L. Guibault, G. Westkamp, T. Rieber-Mohn, et al.) Study on the Implementation and
Effect in Member States' laws of Directive 2001/29/EC on the Harmonisation of Certain
Aspects of Copyright and Related Rights in the Information Society, report to the European
Commission, DG Internal Market, February 2007.
(with R.L. Okediji) ‘Conceiving an International Instrument on Limitations and Exceptions to
Copyright’, study supported by the Open Society Institute (OSI), March 2008.
(with M.R.F. Senftleben) ‘Fair use in Europe. In search of flexibilities’, Amsterdam,
November 2011
(with C.A. Jasserand), ‘Using Copyright to Promote Access to Public Sector Information: A
Comparative Survey’, Part III of a study commissioned by WIPO on Using Copyright to
Promote Access to Information and Creative Content, Geneva, 2012.

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KILPATRICK
KILPATRICK TOWNSEND & STOCKTON LLP
LLP
(JP
Joseph Petersen (JP 9071)
Robert Potter
Robert Potter (RP 5757)
of
1114 Avenue of the Americas
NY
New York, N Y 10036
Telephone:
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
pro
M.
Joseph M . Beck (admitted pro hac vice)
vice)
pro
Pequignot
W. Andrew Pequignot (admitted pro hac vice)
vice)
pro
Allison Scott Roach (admitted pro hac vice)
vice)
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
30309-4530
Telephone: [phone]
Facsimile: [phone]
815-6555
Email: [e-mail]
Attorneys for Defendants
Attorneys for Defendants

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

Plaintiffs,
Plaintiffs,

Case No. 11 Civ. 6351 (HB)
11 Civ. 6351 (HB)

v.
v.
HATHITRUST, ET AL.,
HATHITRUST,ETAL.,
Defendants.

DECLARATION OF CORY SNAVELY IN OPPOSITION
OPPOSITION
TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
MOTION
JUDGMENT
I, Cory Snavely, pursuant to 28 U.S.C. § 1746, hereby declare as follows:
I,
pursuant
U.S.C.
follows:

1.

I am the Manager of Library IT Core Services at the University of Michigan
Manager of
Services

Library. I submit this declaration in opposition to Plaintiffs' motion for summary judgment.
in
Plaintiffs' motion for
Unless otherwise noted, I make this declaration based upon my own personal knowledge.
knowledge.

A-1327
Case 1:11-cv-06351-HB Document 137

2.

Filed 07/20/12 Page 2 of 19

As
IT
of
As Manager of Library IT Core Services at the University of Michigan

for,
("Michigan"), I am responsible for, among other things, the continued development and
maintenance of
HathiTmst
infrastmcture,
maintenance of the HathiTrust Digital Library ("HDL") server and storage infrastructure, which
is
operate.
is where HDL content is stored and HDL services operate.

3.

have
IT
for
I have served as Manager of Library IT Core Services at Michigan for more than

thirteen (13) years. During my tenure at Michigan, I have designed and overseen the
years.
development of the library's technology infrastructure. In or about December 2004, I began to
development of
library's
infrastmcture. I n
December 2004,1
development of
infrastmcture
HDL
oversee the development of the infrastructure that would ultimately underlie HDL when it
laimched
launched in 2008.

4.

My
My duties include ensuring the security of the works within the HDL. This

for the entire
entails, among other things, ongoing attention to a rigorous security program for the entire
five
Michigan library's technology environment. I manage a team of five in connection with this

work.
5.

I have a degree in Systems Analysis which I received from Miami University in
havc

1992. I have participated in numerous groups on campus to help guide Michigan's strategies for
1992.1
numerous
security and storage. For example, I am currently serving on the Information and Infrastmcture
Infrastructure
Assurance
guidance
Assurance Council, a key oversight and decision-making body, which provides guidance to the
campus on security initiatives, programs, and policy relating to computer security.
computer

A.

The Unblemished Security Record of the HDL
6.

I have reviewed the declaration of Dr. Benjamin Edelman, which the Plaintiffs
Plaintiffs

have submitted in connection with their motion for summary judgment. In that declaration, Dr.
with
summary
Edelman provides a list of generalized threats to the security of the HDL, but without regard to
Edelman
generalized
without regard
the steps already taken by the library defendants (the "Libraries") to minimize if not eliminate
if
elimmate
already taken

2
US200S 3674177
US2008J674177

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identifies. His
assessing
altogether the threats he identifies. His approach is akin to assessing the safety of commercial air
sximmarizing
in
from
taking
all
travel by summarizing the ways in which a plane may fall from the sky without taking note of all
of the steps
aviation industry
ofthe steps taken by the aviation industry to guard against such calamity.
7.
7.

In fact, Dr. Edelman apparently had no choice but to limit his report to
In fact, Dr. Edelman apparently had no choice but to limit his report to

This
stady
specific
measures
generalities. This is because he never attempted to study the specific security measures taken by
HDL
admits that
would
qualified
conduct such risk
Michigan to protect the HDL and admits that he would not be qualified to conduct such a risk
assessment
event.
assessment in any event.

8.

Dr.
degrees in
for
Dr. Edelman, who has degrees in economics, not computer science, sat for a .

ia
two weeks before submitting his declaration in this action. He
deposition in the Google lawsuit two weeks before submitting his declaration in this action. He
confessed during
"I
all of
confessed during that deposition that "I don't know about all of the security systems that [the
(Edehnan Tr.
conceded
Libraries] have." (Edelman Tr. at 248:11-12). He also conceded that apart from information
infonnation

contained in a risk assessment conducted by Michigan to improve the security of the HDL, " I
HDL, "I
of
Tr. 268: 12-18).
don't think I have knowledge of [Michigan's] current security." (Edelman Tr. at 268:12-18). He
if
its
"
asked him
testified that if a company asked him to conduct an evaluation of its security measures, "II don't
evaluate
think I would be the best person to evaluate their security systems, but I think I would be able to
assist them in selecting an appropriate person." (Edelman Tr. at 288:15-18). Tme and correct
Tr.
True
copies of relevant excerpts of Dr. Edelman's deposition testimony are attached hereto as Exhibit
copies of
excerpts of Dr. Edelman's
attached
A.

3
US2008 3674177
US200S 3674177

A-1329
Case 1:11-cv-06351-HB Document 137

10.
10.

Filed 07/20/12 Page 4 of 19

in
systems
Based upon my experience in securing computer systems and first-hand

knowledge of the security controls used to protect the HDL, I believe that the generalized risks
of
identified by Dr. Edelman, which are customary and typical risks faced by the operators of any
Intemet
large service accessible through the Internet (including services demanding a high level of
security such as Internet banking), do not render the works within the HDL corpus insecure.
Intemet
insecure.

B.

The
Measures Protecting the HDL From
General Risks Dr. Edelman
The Security Measures Protecting the HDL From the General Risks Dr. Edelman
Identifies.
12.

Dr. Edelman, in paragraphs 16 through 26 of his declaration, sets out a number o f
16 through
of
declaration, sets
of

generalized security risks associated with maintaining a digital library such as the HDL. The
generalized
risks he identifies are, in fact, well known to experts in computer security and my team has taken
my
taken
fact,
known to experts in
a number of precautions to minimize them, if not eliminate them altogether.
of
if
altogether.

13.

Specifically, in paragraph 16, Dr. Edehnan claims that "pirates could extract book
paragraph
Edelman
"pirates

copies through defects in the security of a provider's system." Dr. Edelman continues by
copies
provider'S
continues

Additional background on the security measures taken to protect the HDL is found in the June
HDL
28, 2012 declaration o f the HathiTrust's Executive Dkector, John Wilkin, submitted m support
28,2012
of
Director, John
in
of the Libraries' motion for summary judgment.
of
summary

'
.1

4
US2008 3674177
US200B 3674177

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that unauthorized
copies of
claiming that unauthorized individuals could gain access to digital copies of works through
defects in the physical or virtual access controls guarding the servers housing the digital copies.

Edelman
paragraph
"[d]efects
flaws
Dr. Edelman also claims in this paragraph that "[d]efects could also arise through flaws in the
operating system,
other
operating system, database server, web server, or other software run on a provider's servers; such
flaws have been widespread in even the most popular server software" and claims that "defects
widespread even
popular
"defect'>
could arise through the provider's custom software."

14.

These are all well-knovra, common risks. The H D L uses industry best practices to
HDL
practices
well-known,

greatly reduce the possibility of unauthorized access of the type discussed in paragraph 16 of Dr.
of unauthorized
paragraph
of
Edelman's declaration:
Edelman's

2 Frequently, commercial enterprises do not apply updates because their business requirements
^
enterprises
updates because
business requirements
demand that running systems be unchanged and untouched; this type of approach to security can,
running systems
unchanged
xmtouched;
of
can,
in fact, expose systems to some of the security risks identified by Dr. Edelman. HDL systems, in
fact,
systems
Dr.
contrast, are designed to be maintained regularly and continuously kept up-to-date and secure.
regularly
secure.

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16.

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The security controls identified above (see paragraph 14), particularly the double
paragraph

perimeter firewaIls, greatly minimize the risk of access through exploitation of errors in security
the
firewalls,
configurations. Further, Dr. Edelman's selective use ofMr. Wilkin's testimony falsely suggests
configurations.
Dr. Edelman's
of Mr.
falsely
that the HDL experiences disproportionately frequent, targeted attacks as compared to similar
to similar
experiences
frequent, targeted

17.

Dr.
In paragraph 18 of his declaration, Dr. Edelman cites the risk of a "rogue
paragraph
the

fact,
to inemployee" that "intentionally redistributes[s] book copies." In fact, employee access to in-

is
copyright materials is far more restricted than Dr. Edelman suggests:

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20.

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paragraph
Dr. Edelman, in paragraph 20 of his declaration, speculates that "any error made

by an employer could create a security breach allowing hackers to access book copies and
employer
breach
copies

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23.

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Dr.
paragraph
"[ e]ven f
Dr. Edelman, in paragraph 22 of his declaration, asserts that "[e]ven iif Defendants

attempt to implement security controls and other limitations on users' ability to download book

experience
will exceed
juxtaposes
copies, experience suggests that users will exceed those limitations." He juxtaposes this claim

26.

Dr. Edelman asserts in paragraph 23 of his declaration that the Libraries permit
Dr.
asserts in
Libraries permit

"non-consumptive research" aimed at analyzing patterns in the texts found in the HDL and he
research"
in
found in

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fimctionality increases
a
The entire premise
claims that this functionality increases the risk of a security breach. The entire premise
underlying
assertion
incorrect however.
underlying this assertion is incorrect how~er. The HDL only permits research on material
in
public domain.
in
fliture,
Libraries
non-consumptive
determined to be in the public domain. If, in the future, the Libraries permit non-consumptive
research over in-copyright text, security measured would be adopted to negate the security risks
text,
measured
negate
did not.
identified by Dr. Edelman, as well as other risks he did not.

27.

In sum. Dr. Edelman's
offers the Court nothing more than a collection
In sum, Dr. Edelman's report offers the Court nothing more than a collection of

hypothetical risks without any countervailing assessment of the ways in which the HDL is
countervailmg assessment of the ways hi which the HDL is
protected against such risks. A detailed assessment of the HDL's security protocols in fact
risks.
of
in fact
for a
establishes that the risk of a security breach is exceedingly low, well within the guidelines for a
tmstworthy
of
trustworthy repository of digital information.
I
of perjury
I declare under penalty of peIjury that the foregoing is tme and correct.
true

Executed: M y 20, 2012
July 20,2012
'Cory Snavely

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EXHIBIT A

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Page 1

Page 3
INDEX

1
2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------THE AUTHORS GUILD, INC., )
ASSOCIATIONAL PLAINTIFF, )
BETTY MILES, JOSEPH )
GOULDEN, AND JIM BOUTON, )
INDIVIDUALLY AND ON )
BEHALF OF ALL OTHERS )
SIMILARLY SITUATED, ) C.A. 05 CV 8136-DC
Plaintiffs
) Volume: I
vs.
)
GOOGLE, INC.
)
Defendant
)
-------------------------

WITNESS

DIRECT CROSS REDIRECT RECROSS

3

BENJAMIN G. EDELMAN
4

BY MR. GRATZ 6
5
6
7
8

EXHIBITS
NUMBER

PAGE

9

Exhibit 1 Expert Report of Benjamin Edelman

17

Exhibit 2 Whenu.com Emergency Motion

98

10
11
12
13
14
15

DEPOSITION OF EXPERT WITNESS, BENJAMIN G. EDELMAN,
before Avis P. Barber, a Notary Public and Registered
Professional Reporter, in and for the Commonwealth
of Massachusetts, at the Harvard Business School,
Baker Library, 25 Harvard Way, Boston, Massachusetts,
on Thursday, June 14, 2012, commencing at 10:03 a.m.

16
17

Exhibit 3 Initial Expert Report of Doctor
Benjamin Edelman Concerning Industry
Practices and Activities of
Valueclick
101
Exhibit 4 Expert Report of Benjamin Edelman 112
Exhibit 5 Document entitled "Google Toolbar
Tracks Browsing even after User
Choose Disable"
129
Exhibit 6 Search Engine Land, Blog Post,
131
1/26/10

18
19
20

Exhibit 7 Document entitled "Privacy Lapse at
Google JotSpot"
137
Exhibit 8 Document entitled "Google's JotSpot
Exposes User Data"
139

21

Exhibit 9 Declaration of Benjamin Edelman

143

22

Job No. 148413
PAGES 1 - 312

23
24
25

Exhibit 10 Supplemental Declaration of Benjamin
Edelman
143

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APPEARANCES:
On behalf of the Plaintiffs:
BONI & ZACK, LLC
15 St. Asaphs Road
Bala Cynwyd, Pennsylvania 19004
By: Michael J. Boni, Esquire
Tel: [phone]
Fax: [phone]
[e-mail]
On behalf of the Defendant
DURIE TANGRI
217 Leidesdorff Street
San Francisco, California 94111
By: Joseph C. Gratz, Esquire
Tel: [phone]
Fax: [phone]
[e-mail]
ALSO PRESENT: Jody Urbati, Videographer

NO.
3
4
5
6
7

E X H I B I T S (Continued)
PAGE

Exhibit 11 Document entitled "The Online
Economy: Strategy and
Entrepreneurship"
156
Exhibit 12 Declaration of Benjamin G. Edelman 161
Exhibit 13 Document entitled "Advertisers Using
WhenU"
164

8

Exhibit 14 Exhibit 1

171

9
10

Exhibit 15 Document entitled "Google Books
Partner Program Standard Terms and
Conditions"
213

11

Exhibit 16 Search Inside, Publisher Sign-Up

221

12
13
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16
17
18
19
20
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22
23
24
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Exhibit 17 Participating Authors' Reprint
Agreement v2.0
228
Exhibit 18 Cooperative Agreement
267
Exhibit 19 Document entitled "NDA Never Existed" 270
Exhibit 20 Benjamin Edelman's Thesis
306
EXHIBITS RETAINED BY THE COURT REPORTER

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PROCEEDINGS
THE VIDEOGRAPHER: Good morning. We
are on the record at 10:03 A.M. on June 14th,
2012. This is the videotaped deposition of
Benjamin Edelman. My name is Jody Urbati, here
with our court reporter Barbara Avis. We are
here from Veritext National Deposition and
Litigation Services at the request of counsel.
This deposition is being held at
Harvard Business School in the city of Boston,
Massachusetts. The caption of this case is the
Authors Guild versus Google, Inc. Please note
that the audio and video recording will take
place unless all parties agree to go off the
record. Microphones are sensitive and may pick
up whispers, private conversations and cellular
interference.
At this time will counsel and all
present identify themselves for the record.
MR. GRATZ: Joseph Gratz from Durie
Tangri, LLP in San Francisco for defendant
Google.
MR. BONI: Michael Boni from Boni &
Zach, Bala Cynwyd, Pennsylvania for plaintiffs.
THE WITNESS: Benjamin --

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Q. You have an undergraduate degree and
a Ph.D. in economics; is that right?
A. Yes.
Q. Do any of the opinions stated in your
report apply economic analysis?
A. I think they do broadly understood,
yes.
Q. How so?
A. The report considers the incentives
of various parties, the factors motivating them
to act or not to act and the likely consequences
of those incentives.
Q. Are there any specific economic
methods that are applied in your report?
MR. BONI: Object to form.
A. I'm not sure I understand what you
mean.
Q. What economic methods are applied in
your report?
MR. BONI: Same objection.
A. My training and economics teaches me
to understand and analyze incentives in
considering the actions of any rational actor.
That method of analysis of considering and
applying incentives is applied throughout the

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MR. BONI: I'm sorry, and here
representing the witness.
THE VIDEOGRAPHER: Thank you. The
witness will be sworn in and we can proceed.
BENJAMIN G. EDELMAN,
A witness called for examination, having been
duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. GRATZ:
Q. Good morning.
A. Good morning.
Q. Could you state your name for the
record, please.
A. Benjamin Edelman.
Q. And you're an assistant professor at
Harvard Business School; is that right?
A. Yes.
Q. Do you have tenure?
A. No.
Q. You have a number of degrees from
Harvard; is that right?
A. Yes.
Q. Are any of those degrees in computer
science?
A. No.

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report.
Q. Can you tell me more about that
method?
MR. BONI: Objection to form.
A. Well, you know I think it's pretty
intuitive. It can be structured in a formal
algebraic model when a particular situation
calls for that approach. It can be studied
empirically through large sample or small sample
data when the context calls for that approach.
It can also inform understanding and analysis
without specific application of modeling or of
large sample data analysis.
Q. Did you apply any algebraic modeling
in preparing your report?
A. No.
Q. Did you apply any empirical large
sample data analysis in preparing your report?
A. I wouldn't call it large sample data
analysis. There are sections that draw on
specific examples considered individually which
probably is a better example of small sample
data analysis.
Q. And those are the particular
anecdotes that you set forth in your report?

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it's pretty straightforward that if you have
more limited resources, your ability to expand
those resources on any given project is going to
be correspondently limited.
Q. In your view is it necessarily the
case that smaller and less sophisticated
entities have worse security than larger and
more sophisticated entities?
MR. BONI: Object to form.
A. Not always. Sometimes with simpler
systems or with less valuable contents to
safeguard, the security of a smaller entity can
be more than satisfactory. On the other hand,
when one flips around those conditions, a small
entity guarding a very large gem, one could
quickly get into trouble.
Q. Are your statements in Paragraph 18
of your report based on a survey of companies of
various sizes considering their security
measures?
A. No.
Q. Can you provide an example of one of
the smaller and less sophisticated companies to
which you refer?
A. For example, in the context of domain

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report, you say that attackers can take
advantage of even a brief period when a single
book provider is insecure. You see that?
A. Yes.
Q. Is that true today?
A. Today there aren't so many book
providers. We've discussed only two today.
Both of them large, sophisticated companies with
impressive information security defenses;
whereas, the premise of this section,
Paragraph 13, is that there might be
significantly more in the future, and they might
look quite different.
Q. In the event of a fair use ruling?
A. Correct, which has been the premise
of the entire section where we've been here.
Q. Have you -- so it's your view that
today's book providers like Google and Amazon
have a different and higher level of security
than tomorrow's book providers might in event of
a fair use ruling, such that smaller entities
would enter the market and present the risks
discussed in this section; is that right?
A. That's right.
Q. Turning to Paragraph 20, you say, "I

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names, there used to be one company, VeriSign
Network Solutions that was the sole vendor of
.com domain names. When that market was opened
up to competition, there were a variety of
benefits, but there have also been some
downsides, including that some of the smaller
guys have been hacked in various ways, have
allowed their servers to be taken down by
something as routine as a power outage and have
otherwise failed to lived up to their
contractual commitments. In contrast, the
larger vendors in that space have largely
succeeded in living up to their contractual
commitments.
Q. Are you aware of any in The Book
Space?
MR. BONI: Do you understand the
question?
A. I do, but I think it's a little bit
speculative at this point that there aren't that
many smaller sites holding digital copies of
books and presenting them in snippet form. If
there are any small such companies, I guess I
don't know about them.
Q. Turning to Paragraph 19 of your

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understand that the Google Library Project
includes providing to the library partners a
full digital copy of the books the libraries
allowed Google to scan. Breaches at the
security systems at these libraries" -- excuse
me -- "breaches in the security systems at these
libraries, could facilitate book piracy." Do
you know what security systems the libraries who
store books such as the University of Michigan
have in place?
A. I don't know about all of the
security systems that they have.
Q. How do they compare to the security
systems that, for example, iUniverse which is
the party to the agreement in Exhibit 17 has in
place?
MR. BONI: Object to form. He just
said he's not sure what the security systems are
in the libraries.
A. I'm also not sure what the security
systems are at iUniverse, so I really don't
think I can make a comparison.
Q. You, likewise, couldn't make a
comparison to the security systems that Google
or Amazon has in place?

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A. I don't know everything that I'd want
to know in order to make that comparison. In
general, I think there's good reason to suspect
that the libraries will have significantly lower
levels of security.
Q. But you don't know one way or the
other?
A. I don't know one way or the other,
and furthermore, I'm not sure the answer is
knowable just yet. We need to think about what
level of security libraries will have several
years from now. It's hard to say, sitting here
today what they'll do in several years.
Q. Are you aware of any books being
pirated or stolen from a research library
archived with scans made by Google?
A. No.
Q. Turning to Paragraph 21, you say,
"I've not been informed of all the ways that
libraries intend to use the book contents data
they receive from Google, nor have I been
informed how libraries intend to secure that
data. But the information currently available
indicates that libraries' actions present a risk
of book piracy." You see that?

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Q. Did any of your work on the Multnomah
County case or the interviews with librarians
and other librarian staff members in that case
form a basis for any of the opinions you render
in your report in this case?
A. It's not a basis. It's part of my
overall professional background consistent with
expert service.
Q. Do you know whether the University of
Michigan is storing book scans in its normal
library information systems or in a separate
system?
MR. BONI: Object to form.
A. I don't know one way or the other.
Q. What information, additional to the
information you have about the library's
security measures, would permit you to better
assess the risks?
MR. BONI: What risks?
Q. The risks you discussed in Paragraphs
20 and 21.
A. Understanding both what they do now
and what they will do in the future, what they
commit in some sort of a binding contractual
sense to do or not to do. I need to understand

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A. Yes.
Q. You don't know what security measures
the libraries have in place today; is that
right?
A. I don't know all of what they have in
place.
Q. What do you mean by "information
currently available" as you use it in Paragraph
21?
A. Yes, in Exhibit C, I cite the
Hathitrust materials which I did review. That
gives some information about some of the
libraries' security systems. I actually have
quite a bit of experience with library
information systems from the Multnomah County
Public Library case that we discussed
previously.
I've spent time interviewing
librarians. I've spent time with the CIOs of
libraries. I've spent time in the library
computer systems, understanding how they work
and how they interoperate and have come to have
a general understanding of the overall culture
and approach to information sharing that's
common in libraries.

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the servers on which the data is to be stored,
the physical security, the network security, the
logical security, software level, user accounts,
credentialing.
This sounds like a full security
audit. I'm not sure I'm the best person to do
it, but in any event, it requires understanding
quite a bit about their practices, both in the
present and their future practices, which is a
little bit harder to investigate in
anticipation.
Q. Turning to Paragraph 22, you refer to
a student who used MIT library access to
download 4.8 million articles and other
documents. You see that?
A. Yes.
Q. Is that man named Aaron Swartz?
A. Yes.
Q. Aaron Swartz is being charged
criminally for that activity; is that right?
A. Yes.
Q. And those charges are currently
pending; is that right?
A. That's my understanding.
Q. What was the effect on the value of

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A. Yes.
Q. Do you consider that to be in
violation of intellectual property rights?
A. I think it's an infringement of the
trademark, and the question is whether a fair
use defense applies. There is a doctrine of
fair use for trademarks and stylized images. I
think it's a plausible fair use defense. There,
I'd really have to apply the factors and read
the cases. I'm much less familiar with the Fair
Use Doctrine as it applies to stylized images
and logos.
Q. The Apple prank which you refer
occurred in October of 2011; is that right?
A. I don't recall.
Q. Did it occur shortly after the death
of Steve Jobs?
A. If you say so.
Q. Did students display the Apple logo
in the clock tower of Maseeh Hall at MIT in
honor of Steve Jobs in the prank you referred to
in Paragraph 25?
A. Now, that could be. I don't recall.
Q. Do you think that that prank is
relevant to the issues in this case?

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of 2004?
A. I don't know.
Q. Did it occur when the Red Sox made it
to the World Series?
A. I don't know.
Q. Were the -- do you think that the
students celebrating the Red Sox making it to
the World Series by displaying the logo on the
dome of the university building was intellectual
property infringement?
A. The law is what it is, and it's not
for me to rewrite trademark law. I wouldn't be
surprised if that is infringement as a matter of
law, and fair use defense might or might not
apply. It wouldn't shock me if you said that to
do that a license must be paid to the Red Sox,
and if you don't pay it, then you're in
violation of the law.
MR. GRATZ: Mark as Exhibit 19, this
document. I want to note for the record before
I hand it to the witness that despite the
confidential legend at the bottom of this
document, this is not a confidential document.
(Document marked as Exhibit No. 18
for identification.)

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A. I can certainly see how it would seem
peripheral. On the other hand, the fact that
students are well known to disregard
intellectual property is anything but
peripheral. It's well known that Napster was
most used on college campuses. There were
distinctive trends. You could see the number of
users signed into Napster decrease when major
schools went onto spring break. So the
relationship between students, university
libraries and piracy is not peripheral.
Q. Could you tell me about the Red Sox
logo prank you referred to in Paragraph 25?
A. I don't recall. I went through the
site, looked at the distinctive images
memorializing the pranks, but I didn't note them
in great specificity.
Q. Do you consider that an instance of
piracy?
A. I'm not sure. I do think it's
probably an instance of trademark infringement,
and it might be subject to a fair use defense.
Q. The prank you referred to in
Paragraph 25 with respect to the logo of the
Boston Red Sox, did that prank occur in October

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Q. You have before you what's been
marked as Exhibit 18. Do you recognize this
document?
A. Yes.
Q. Is this the document to which you
refer in Paragraph 26 of your report?
A. I think so.
Q. Do you know what security measures
the University of Michigan has in place?
A. That's discussed in part in this
document.
Q. Aside from this document, do you have
any knowledge other than what is in this
document of security measures that the
University of Michigan has in place?
A. Aside from what's discussed in this
document, I don't think I have knowledge of
their current security.
Q. Is it your opinion that an author
would not agree to have his work stored by the
University of Michigan without greater security
terms than those set forth in Exhibit 18?
MR. BONI: Object to form.
A. I'm not sure. It all depends on what
the author gets in exchange. If they get zero,

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to pass in the event of a fair use ruling in
favor of Google?
MR. BONI: Object to form. You want
a mathematical response to that question?
MR. GRATZ: Whatever the response the
witness has for me.
MR. BONI: Object to form.
A. I don't know. It would be easier to
say once that fair ruling resulted, if it did
result, once we see who comes along and scans
which books and stores them in what ways, until
then, it's just a little bit too speculative for
me to want to put a number on it, but it
certainly is a serious concern.
Q. What's the magnitude of the harm in
dollars? The harm here, I mean the harm that
you were discussing in Paragraph 38.
MR. BONI: Object to form.
A. I'm not sure. It's difficult to put
a dollar value on it, but I do think it's
significant. If you asked a publisher what
would they be willing to pay to have a complete
protection against piracy, to be able to print
their books on uncopyable paper or with magical
ink, I think you'd find publishers would be

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MR. BONI: Objection. You know he's
not a damages expert, Joe.
Q. You can answer.
A. I have not. I'm not a damages
expert.
Q. Has a company ever come to you and
asked you to evaluate the risk of intrusion into
their computer systems which protects books?
A. No.
Q. Has a company ever come to you and
asked you to evaluate the risk of intrusion into
their computer systems at all?
A. That seems like the kind of thing
someone would have asked me to do at some point.
I just need to take a moment to think about it.
Certainly I've thought about that
question for the organizations which -- with
which I've had long-term relationships. So, for
example, when I was running the Berkman Center
server, that was a question I thought about. I
thought about it with ICANN. I've thought about
it as to portions of Harvard Business School.
I've thought about it with Wesley as to the
servers that we operate together, as to paying
clients that come specifically for that.

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willing to pay a significant portion of their
enterprise values in order to get that magical
technology.
Q. And you consider that to be the
measure of the magnitude of the harm set forth
in Exhibit -- in Paragraph 38?
MR. BONI: Object to form.
A. It's not that that's how you'd
measure it, but that's the sort of thought
experiment one would do.
Q. How would you measure it?
A. On thinking about the way that other
large harms are measured, how do we assess the
value of a life when a life is taken away from a
person? How do we assess the value of a plane
crash or a nuclear disaster? It's really not my
area of expertise. It's not something I've
opined on here. But here I consider the
totality of future lost profits. So I do my
best to figure out what profits would have been
and then what they will be as a result of the
loss, and I subtract those two numbers, and that
would be the starting point for the harm.
Q. Have you done that in preparing your
report?

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I think it would be unusual for
anyone to seek my assistance for that solely and
specifically, but if they already knew me from
something else, I can think of a couple of
clients who have sought assistance with problems
generally in that vein based on prior
relationships.
Q. If a company came to you and asked
you to evaluate the risk of intrusion into its
computer systems which protect books, would you
accept the assignment?
MR. BONI: Object to form. That's
the entire hypothetical?
MR. GRATZ: That's the question.
A. I don't think I would be the best
person to evaluate their security systems, but I
think I would be able to assist them in
selecting an appropriate person. I would be
able to guide that person towards the areas of
greatest concern, perhaps review their initial
report, and suggest areas for extension and
further inquiry.
Q. What process would you recommend be
undertaken to evaluate the risk of intrusion
into those computer systems that protect books?

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A. I suppose it would all depend on what
books I was trying to protect, what I was trying
to protect them from, what access I needed to
allow. The easiest thing to do to prevent
unauthorized access is to prevent all access by
destroying the digital records, but I imagine
that wouldn't be what someone hired me to tell
them. They'd want some way to use it for some
purposes while disallowing use for other
purposes.
Q. If a company came to you and asked
you to evaluate the risk of an intrusion into
their computer systems which protect books and
which host books for the purpose of making
snippets available in response to searches, what
process would you take to under -- to make that
evaluation?
A. Well, I think I would -- I would
consider the sorts of security systems that
we've discussed a couple times today in
different parts of our time together as to
physical security, network security, software
security, application level security, human
resources and internal controls. I'd consider
each of those. Each would be significant. Each

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at Google. I'd look at my organizations's
experience or the client's organization's
experience with rogue employees.
When we have a thousand engineers,
how many of them turn out to be bad apples, how
many bad ones do you get out of a thousand? Is
there any way to prevent two of them from acting
together in concert? Could we have an audit
trail that prevents this kind of copying and
that kind of copying? Is it possible to make an
audit trail that's so robust that even a senior
engineer can't turn it off? Because we know
some of the problems occur from senior engineers
who can bypass the ordinary control.
So that's the kind of question I'd be
asking as to that facet, but to be sure, each of
the facets would require a different type of
analysis.
Q. Did you do any of that in preparing
your report in this case?
A. I considered those kinds of
approaches. The data and information required
aren't available to me and weren't necessary in
order to reach the conclusions set out in my
report.

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would have multiple facets within it.
And then my analysis would be
informed, importantly, by the material that I
was holding. If it was unique and one of a kind
and highly sought after, then I would be
particularly concerned about the skills of my
intruders. And if I needed to allow massive,
high-volume access by a large number of
different users, potentially some of them fake
or automated or robotic, I would be even more
concerned, and I would need to be open to the
possibility, the very real possibility that I
couldn't do this with the required level of
quality and would need to revisit my plans.
Q. What information would you need to
evaluate the risk of intrusion into such a
system which stores books for the purpose of
making snippets available in response to
searches, for example?
A. One would need to think about each of
the aspects of security just discussed. So for
example, as to human resources security, making
sure that there isn't a rogue employee who takes
the data in the way that other rogue employees
have done other untoward things, including even

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Q. Why weren't they necessary? Would
having them have aided you in reaching your
conclusions?
A. Perhaps I could have reached
additional conclusions. I imagine that with
enough study, I might get to the point where I
was prepared to put a number on some of the
probabilities. There's this probability per
year of this kind of bad thing happening if you
use these controls. I think that is an
estimatable number. One can estimate even these
very small probabilities with enough analysis
and enough review, but it's quite difficult, and
I didn't consider it necessary or appropriate,
given what I was asked to do in this report at
this time.
Q. Did you run any bargaining
experiments in connection with your report?
A. No.
Q. Did you perform any statistical
analysis in connection with your report?
A. No.
Q. In signing your own consulting
agreements, have you performed market checks
regarding terms?

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Q. Turning to the references cited page
of your senior thesis on page 77, under G, do
you see a citation to a book by A. Greco called
The Book Publishing Industry?
A. Yes.
Q. And turning to page 33 of your senior
thesis, you see the bottom of page 33 it says,
"I further add two promotion-specific variables
to investigate market trends noted by Greco
(1997) in discussing clumping of book sales over
time"?
A. Yes.
Q. Is that a citation to the Greco work
titled The Book Publishing Industry cited in
your references cited section?
A. Seems to be.
Q. Do you have an opinion as to Albert
Greco's expertise regarding The Book Publishing
Industry?
A. Not really.
MR. BONI: Are you done with this,
Joe?
MR. GRATZ: Yes. Nothing further.
MR. BONI: I have nothing.
THE VIDEOGRAPHER: Here ends this

Page 311
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CERTIFICATE
COMMONWEALTH OF MASSACHUSETTS.
MIDDLESEX, SS.

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I, Avis Barber, Registered Professional
Reporter and Notary Public, in and for the
Commonwealth of Massachusetts, do hereby certify
that:
BENJAMIN G. EDELMAN, the witness whose
deposition is hereinbefore set forth, was duly
sworn by me, that I saw a picture identification
for him in the form of his Harvard College
Identification card, and that the foregoing
transcript is a true and accurate transcription
of my stenotype notes to the best of my
knowledge, skill and ability.

10
11
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16

I further certify that I am not related to
any of the parties in this matter by blood or
marriage and that I am in no way interested in
the outcome of this matter.
IN WITNESS WHEREOF, I have hereunto set my
hand and notarial seal this 20th day of June
2012.
--------------------------Avis Barber, RPR
Notary Public
My commission expires: July 30, 2015

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deposition. Off the record, 6:18 p.m.
(Whereupon, the deposition was
concluded at 6:18 p.m.)

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I declare under penalty of perjury
under the laws that the foregoing is
true and correct.
Executed on _________________ , 20___,
at _____________, ___________________________.

__________________________
BENJAMIN G. EDELMAN

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A-1345
Case 1:11-cv-06351-HB Document 138

Filed 07/20/12 Page 1 of 58

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

Case No. 11 Civ. 6351 (HB)

v.
HATHITRUST, ET AL.,
Defendants.

DECLARATION OF JOSEPH PETERSEN IN SUPPORT OF
THE LIBRARIES’ OPPOSITION TO PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT

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

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

Townsend & LLP, attorneys for the Defendants in the above-captioned action (the “Libraries”). I

A-1346
Case 1:11-cv-06351-HB Document 138

Filed 07/20/12 Page 2 of 58

make this Declaration, based on my own personal knowledge, in support of the Libraries’
opposition to Plaintiffs’ Motion for Summary Judgment.
2.

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

Plaintiffs’ First Requests for Admission to Defendant Mary Sue Coleman.
3.

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

Plaintiffs’ First Requests for Admission to Defendant Mark G. Yudof.
4.

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

Plaintiffs’ First Requests for Admission to Defendant Kevin Reilly.
5.

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

Plaintiffs’ First Set of Interrogatories to Defendant Mary Sue Coleman.
6.

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

Plaintiffs’ First Set of Interrogatories to Defendant HathiTrust
7.

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

Plaintiffs’ First Set of Interrogatories to Defendant Mark G. Yudof.
8.

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

Plaintiffs’ First Set of Interrogatories to Defendant Kevin Reilly.
9.

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

transcript of the June 4, 2012 deposition of Frederic L. Haber, designated as a 30(b)(6)
representative of The Copyright Clearance Center.
10.

Attached hereto as Exhibit I is a true and correct copy of a print-out the

Copyright Clearance Center’s Management Summary Financial Data, printed from the
Copyright Clearance Center’s website at http://annualreport.copyright.com/managementsummary-financial-data on July 18, 2012.

A-1347
Case 1:11-cv-06351-HB Document 138

11.
11.

Filed 07/20/12 Page 3 of 58

Attached
as Exhibit J
correct copy of print-out ofthe
Attached hereto as Exhibit J is a true and correct copy of a print-out of the

Kindle License Agreement and Terms of Use,
at
Amazon.com Kindle License Agreement and Terms of Use, printed from Amazon.com at
http://www.amazon.comlgplhelp/customer/display.html?nodeld=200506200&
18,2012.
http://www.amazon.com/gp/help/customer/display.html?nodeld=200506200& on July 18, 2012.
that
foregoing
declare under penalty
II declare under penalty of perjury of the laws of the United States that the foregoing is
and
true and correct.
Dated: July 20,2012
20, 2012

..( /

~=-----

Joseph Petersen

US2008 3687368 1
US2008 3687368 I

A-1348
Case 1:11-cv-06351-HB Document 144

Filed 07/27/12 Page 1 of 4

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.

SUPPLEMENTAL DECLARATION OF JOHN WILKIN IN SUPPORT OF
THE LIBRARIES’ MOTION FOR SUMMARY JUDGMENT
I, John Wilkin, pursuant to 28 U.S.C. § 1746, hereby declare as follows:
1.

I understand that the Plaintiffs, in their Opposition to the Libraries’ motion for

summary judgment, have questioned the Libraries’ use and retention of image and text files in
the HathiTrust Digital Library (“HDL”). As discussed below, image and text files of each work
are necessary for the search, preservation, and accessibility services HathiTrust provides.

A-1349
Case 1:11-cv-06351-HB Document 144

2.

Filed 07/27/12 Page 2 of 4

The digital copy of each work in the HDL includes (a) an image component

representing photographic reproductions of pages of the work (the “Image File”) and (b) a
Unicode text component representing text in machine-readable format (the “Text File”). The
Text File is created from the Image File using Optical Character Recognition (OCR) software
that converts the page images into searchable text.
3.

Maintaining only the Image File, or only the Text File, would not permit

HathiTrust to provide its search, preservation, and accessibility services. For example, the Image
File preserves for replacement purposes the text, formatting, images, and other features on the
page as they appear in the book, but it cannot provide full-text searching. Conversely, the Text
File, which allows full-text searching, cannot serve as an archival preservation format.
4.

First, the Text File does not include completely accurate text. Even the best OCR

technology available does not reliably recognize all characters correctly, particularly in the case
of older or inconsistent fonts or creative typography. For example, “L’s” often become “1’s” and
“s’s” in older fonts are often incorrectly identified by OCR software as “f’s.”
5.

Second, existing OCR software is not capable of producing a Text File that

includes all of the textual, formatting, and graphical features of a book. Through manual XML
coding, we are able to identify and describe certain textual features, but running heads (a short
title that appears at the top of each page), paragraphs, stanzas, and line breaks are either not
coded or are not reliably included in coding. Moreover, illustrations, tables, graphs, and other
images are not included in the Text File. These textual, formatting, and graphical features
missing from the Text File may represent information necessary to communicate the information
in the work. For example, in poetry and other creative writing forms, paragraph or stanza format,
layout, and line breaks may be relevant to the works’ meaning. In addition, works that include

2

A-1350
Case 1:11-cv-06351-HB Document 144

Filed 07/27/12 Page 3 of 4

mathematical or scientific formulas often rely on superscript and subscript notations and other
positional relationships between characters and symbols that are not reliably identified by OCR
software, and maintaining a Text File alone for these works would be insufficient.
6.

Because the Text File does not include all of the necessary information, as

described above, the Image File remains the authoritative digital representation of the printed
book. The Image File may also be used to improve the accuracy of the Text File as OCR
technology enhancements becomes available.
7.

Moreover, both the Image File and the Text File are critical to HathiTrust’s

fulfillment of its mission to provide equal access to users with print disabilities. Some blind
users may be able to utilize a text-only digital format by using screen-readers and text-to-voice
software that convert the text into an accessible format. Other print-disabled users—such as lowvision readers or sighted individuals with other print disabilities—may be able to read a digital
image file that has been enlarged or otherwise optimized for their use. Providing these users with
a text format only would deny them the ability to access information communicated in a book’s
text formatting and layout, special symbols or characters, or graphical features such as
photographs, illustrations, graphs, or tables. Only by making the Image File available to these
users can HathiTrust provide access more equivalent to that of their peers without print
disabilities.
8.

Recognizing that print disabilities take a variety of forms and that individuals with

different print disabilities may require different formats, HathiTrust offers students and faculty
with certified print disabilities both the Image File and a concatenated presentation of the Text
File that is optimized for use with screen-readers and text-to-speech software.

3

A-1351
Case 1:11-cv-06351-HB Document 144

Filed 07/27/12 Page 4 of 4

I dec lare under pena lty or perj ury under the laws o f the United States that the foregoi ng is
true and correct.

Date: Julyl l , 20 12
John P. Wilkin

4
U52OO8 3i00880 4

A-1352
Case 1:11-cv-06351-HB Document 145

Filed 07/27/12 Page 1 of 29

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.

REPLY DECLARATION OF JOSEPH PETERSEN
IN SUPPORT OF THE LIBRARIES’ MOTION FOR SUMMARY JUDGMENT
I, Joseph Petersen, make the following declaration:
1.

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

Townsend & LLP, attorneys for the Defendants in the above-captioned action (the “Libraries”). I
make this Declaration, based on my own personal knowledge, in further support of the Libraries’
Motion for Summary Judgment.

A-1353
Case 1:11-cv-06351-HB Document 145

2.

Filed 07/27/12 Page 2 of 29

Attached hereto as Exhibit A is a true and correct copy of "Statement of Position

as to Certain of the Draft Copyright Proposals of the Register of Copyrights," by American Book
Publishers Council, Inc. & American Textbook Publishers Institute, dated June 12, 1964 and
included in Copyright Law Revision Part 4 - Further'Discussions and Comments on the
Preliminary Draft for Revised Us. Copyright Law (December 1964) at page 267.
3.

Attached hereto as Exhibit B is a true and correct copy of a printout of a web

page titled "Functional Objectives," printed from the HathiTrust website at
http://www.hathitrust.org/objectives on July 25,2012.
4.

Attached hereto as Exhibit C is a true and correct copy of the Shared Digital'

Repository Collaborative Effort Agreement entered into between the University of Michigan and
the Committee on Institutional Cooperation, fully executed on April 8, 2008, and produced to
Plaintiffs in discovery under Bates numbers UWOOOI03 - UWOOOI09.
I declare under penalty of perjury of the laws oft
true and correct.
Dated: July 26,2012

s that the foregoing is

A-1354
Case 1:11-cv-06351-HB Document 145

Filed 07/27/12 Page 19 of 29

EXHIBIT B

A-1355
Functional Objectives | HathiTrust Digital Library
Case 1:11-cv-06351-HB Document 145

Page 1 of 2
Filed 07/27/12 Page 20 of 29

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Functional Objectives
November 5, 2010

Functional Objectives – Short-term
• Page turner mechanism: HathiTrust supports an application for reading, downloading, and interacting with (e.g., zooming and rotating) texts and images in
HathiTrust. The page turner application interfaces with mechanisms such as the Rights Database and Shibboleth (a mechanism for inter-institutional
authentication) to provide appropriate access to materials, and integrates with services such as the Collection Builder, full text search, and the bibliographic
catalog.
• Branding (overall initiative; individual libraries): HathiTrust supports branding in the repository in a number of ways:
◦ The pageturner prominently identifies the HathiTrust initiative;
◦ A watermark on every page identifies the digitizing agent; and
◦ A watermark on every page identifies the source library of the print material.
◦ The source of the print material is included in our feed of bibliographic identifiers so that institutions can import or update records with this information.
◦ The pageturner contains institution-specific branding, identifying to users at partners institutions that their institution is a member of HathiTrust.
• Format validation, migration and error-checking: Format validation and error-checking is performed for all content that enters HathiTrust. Although, to
date, no migration of content has been necessary to date, we believe that we have mitigated this need by choosing rich, flexible, standards-based formats.
HathiTrust stores a variety of technical and digital preservation metadata along with each object in order to aid in migration should it become necessary.
Strategies are in place to ensure and validate the integrity of HathiTrust materials on an ongoing basis.
• Development of APIs that will allow partner libraries to access information and integrate it into local systems individually: Several APIs have been
released for this purpose. Two key examples are a bibliographic API (Bib API (bib_api) ), which supports lookup and catalog integration, and a data API (Data
API (data_api) ), which provides machine access to the underlying data in a digital object. Information on all modes of content and metadata distribution
(including OAI and tab-delimited metadata files) can be found at http://www.hathitrust.org/data.
• Access mechanisms for persons with disabilities: HathiTrust has deployed an accessible interface that uses descriptive labeling, key tabs, and other
strategies to facilitate navigation and use by users with print disabilities (e.g., optimized for use with screen readers). HathiTrust has also deployed
authorization mechanisms that permit users who are certified as having print disabilities to access the full text of public domain and in copyright volumes in
HathiTrust. These mechanisms, which have been deployed at the University of Michigan, are sufficiently generalized to provide access at partner institutions
pending agreement on entitlement attributes (to be used in connection with Shibboleth) and institutional policies. A CIC working group chaired by Mark
Sandler has initiated work to help address these needs.
• Public ‘Discovery’ Interface for HathiTrust: HathiTrust released a temporary public version of a comprehensive bibliographic search application (i.e., a
catalog) in April 2009 and has worked through a collective process to define a HathiTrust view in WorldCat. The WorldCat implementation of the HathiTrust
catalog will be released as a pilot in November 2010.
• Ability to publish virtual collections: HathiTrust has created a Collection Builder (http://babel.hathitrust.org/cgi/mb) application that permits individuals to create
public (i.e., shared) and private collections. Collection Builder uses Shibboleth authentication for users at partner institutions, but also permits authentication
through the University of Michigan “friend (http://www.itd.umich.edu/itcsdocs/s4316/) ” system so that unaffiliated users can create and maintain collections.
• Mechanism for direct ingest of non-Google content: HathiTrust developed automated ingest mechanisms for book and journal content digitized by the
Internet Archive in April 2010. A technical and policy framework for ingest of other digitized book and journal content (e.g., digitized by partner institutions) is
being finalized currently. When this is complete, routine ingest of partner content will begin.

Functional Objectives – Long-term
• Compliance with required elements in the Trustworthy Repositories Audit and Certification (TRAC) criteria and checklist: The Center for Research
Libraries is conducting an independent assessment of the HathiTrust repository, based largely on the Trusted Repositories Audit and Certification (TRAC)
criteria. The assessment is targeted to be complete by the end of 2010. Information about HathiTrust's compliance with TRAC can be found at
http://www.hathitrust.org/standards (http://www.hathitrust.org/standards) .
• Robust discovery mechanisms like full-text cross-repository searching: An initial implementation of full-text search of the entire repository was released
on November 19, 2009. The launch of this service represented significant research and development, much of which is documented on the HathiTrust
website at http://www.hathitrust.org/large_scale_search (http://www.hathitrust.org/large_scale_search) and http://www.hathitrust.org/blogs/large-scale-search
(http://www.hathitrust.org/blogs/large-scale-search) .
• Development of an open service definition to make it possible for partner libraries to develop other secure access mechanisms and discovery
tools: HathiTrust has created a number of APIs (data) for this purpose, as well as a collaborative development environment for partners to improve existing,
and develop new applications.
• Support for formats beyond books and journals: HathiTrust is investigating issues relating to the storage and delivery of electronic publications (in the
ePub format in particular) and digital audio and image files (such as maps). Pilot projects in each of these areas are underway.
• Development of data mining tools for HathiTrust and use by HathiTrust of other analysis tools from other sources: HathiTrust has engaged multiple
strategies to support data mining in HathiTrust:

http://www.hathitrust.org/objectives

7/25/2012

A-1356
Functional Objectives | HathiTrust Digital Library
Case 1:11-cv-06351-HB Document 145

Page 2 of 2
Filed 07/27/12 Page 21 of 29

1. Data Distribution: HathiTrust has made sample datasets (datasets) available to researchers for computational processing and analysis. The purpose of the
samples is to give researchers an idea of the structure of the repository ahead of broader distribution of the public domain in HathiTrust (planned for early
2011) and strategy 2 below.
2. SEASR integration: The SEASR development team is in the process of integrating SEASR into HathiTrust as a proof of concept.
3. HathiTrust Research Center: HathiTrust plans to create a Research Center equipped with a variety of tools and services to allow a broad variety of
analyses on the repository corpus.

About Help Feedback Take-Down - Privacy Contact
- - - - - - Policy - - -

http://www.hathitrust.org/objectives

7/25/2012

A-1357
Case 1:11-cv-06351-HB Document 148

Filed 07/27/12 Page 1 of 4

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

:

v.

Case No. 11-cv-6351(HB)

:

HATHITRUST, et al.,

:

Defendants.
:
---------------------------------------------------------------X
DECLARATION OF FREDRIC K. SCHROEDER
I, Fredric K. Schroeder, declare as follows:
QUALIFICATIONS AND EXPERIENCE
1.

This declaration is based on my personal knowledge. I am competent to testify on

the matters stated and declare that these items are true and accurate to the best of my knowledge
and belief. I hold the following opinions to a reasonable degree of professional certainty based
on the facts presented to me.
2.

I am currently employed as a Research Professor at San Diego State University

where I am responsible for developing curricula in the area of rehabilitation administration
leadership and policy development. I also serve as the University’s principal liaison with
Congress and the current administration on vocational rehabilitation issues. I have held this
position since 2001.
3.

From 2001 to 2002, I also served as Director of the Professional Development and

Research Institute on Blindness, Louisiana Tech University where I was temporarily appointed
to establish a new research and training institute on blindness and where I established a master’s
degree program in the education of blind children.

A-1358
Case 1:11-cv-06351-HB Document 148

4.

Filed 07/27/12 Page 2 of 4

In 1994, I was appointed by President Clinton and confirmed by the Senate to

serve as the Commissioner of Rehabilitation Services Administration for the U.S. Department of
Education. I served in that position until 2001. As Commissioner, I served as the principal
officer of the federal agency authorized to carry out specified portions of the Rehabilitation Act
of 1973, as amended; the Randolph-Sheppard Act, as amended; and the Helen Keller Act. In
addition to other tasks, I also provided executive leadership to the Rehabilitation Services
Administration, establishing goals and objectives for serving individuals with disabilities, and
developed standards, criteria, guidelines, and policies to provide direction in the administration
of agency programs.
5.

From 1986 to 1994, I served as Executive Director of the New Mexico

Commission for the Blind where I had administrative responsibility for statewide services for the
blind.
6.

From 1981 to 1986, I served as the Special Education Low Incidence Coordinator

for Albuquerque Public Schools, District Diagnostic Center.
7.

In 1984, I was a Part-time Instructor of a course in Special Education Services for

Children with Visual Impairments or Blindness at the University of New Mexico.
8.

I have previously served as a Teacher of the Visually Impaired and as an

Orientation and Mobility Instructor.
9.

I have a Ph.D. in Education Administration and Supervision from the University

of New Mexico, a Master of Arts in Special Education of the Physically Handicapped and
Visually Handicapped from San Francisco State University, and a Bachelor’s degree in
Psychology from San Francisco State University.
10.

I am also a blind consumer of assistive technology.

2

A-1359
Case 1:11-cv-06351-HB Document 148

Filed 07/27/12 Page 3 of 4

11.

A copy of my curriculum vitae is attached as Exhibit A.

12.

Throughout my career and education, I have gained extensive experience in

determining appropriate literacy methods and accommodations for those who are blind and
visually impaired, for both individuals and at the policy and administrative levels and thus have
had frequent professional encounters with all of the factors reflected in paragraphs 13 through 19
below.
OPINION
13.

Low vision readers who access HDL scans using software that uses screen

magnification and text-to-speech will not affect the market for large print because such readers
typically cannot do sustained reading based solely on large print.
BASIS FOR OPINION
14.

My opinion is based upon the facts set forth below and upon my extensive

experience working with blind and visually impaired individuals as set forth in paragraphs 2
through 12 above and Exhibit A hereto.
15.

Many persons who qualify as legally blind, that is, have vision in one eye worse

than 20/200 when corrected, but retain some vision, do not have the option of using large print
on paper for sustained reading. Eye fatigue and nystagmus set in for many low vision readers if
that reader tries to read only visually.
16.

Thus, a number of software programs are offered that combine screen

magnification with text-to-speech, so that low vision readers have both visual and audible input.
17.

Low vision readers using such programs typically use the visual input to get the

physical layout of the material, such as where a paragraph begins or end or whether a notation
like “(a)” refers to a variable in an equation or the first of several answer choices.

3

A-1360
Case 1:11-cv-06351-HB Document 148

18.

Filed 07/27/12 Page 4 of 4

Low vision readers using screen magnification software generally experience a

high error rate - a particularly significant issue when the reading relates to academ ic material.
19.

Access to large print alone, without accompanying audio, is inadequate for most

low vision readers.

r declare under penalty of perjury under the laws ofthe United States of America thHttlic
foregoing is true and correct.

Dated: July

li, 201 2

y-~ Sl-Jv\
Fredric K. Schroeder

A-1361
1
C86QautC
1
2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x

3

THE AUTHORS GUILD, INC. et al.

4

Plaintiffs

5
6

v.
HATHITRUST, et al.

7
8

11 CV 6351 (HB)

Defendants
------------------------------x
New York, N.Y.
August 6 2012
3:15 p.m.

9
10
Before:
11

HON. HAROLD BAER, JR.

12
13
14
15

District Judge
APPEARANCES
FRANKFURT KURNIT KLEIN & SELZ PC
Attorneys for Plaintiffs
EDWARD H. ROSENTHAL
JEREMY S. GOLDMAN
ADAM S. NELSON

16
17
18
19

KILPATRICK STOCKTON LLP
Attorneys for Defendants HathiTrust et al
JOSEPH PETERSEN
JOSEPH M. BECK
W. ANDREW PEQUIGNOT
ALLISON SCOTT ROACH

20
21

BROWN GOLDSTEIN LEVY
Attorney for Defendant National Federation of the Blind
DANIEL F. GOLDSTEIN

22
23

ROBERT J. BERNSTEIN
Attorney for Defendant National Federation of the Blind

24
25
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

A-1362
11
C86QautC
1

MR. ROSENTHAL:

Well, the issue of the blind is

2

governed by another section of the copyright law, Section 121,

3

which again very carefully delineates the circumstances under

4

which an authorized entity -- and the defendants here are not

5

an authorized entity -- can make copies of works in certain

6

formats for use by visually disabled students or otherwise.

7

And, again, in that instance, Congress weighed the

8

rights of the various stakeholders, including profound concerns

9

over security which were governed by saying it has to be in

10

certain specified formats, and the interest of the visually

11

disabled and came up in Section 121 with a mechanism for

12

deciding when and how that could be allowed.

13

Also, defendants could have gone to individual rights

14

holders and asked individual rights holders for permission to

15

have their books made available under certain circumstances for

16

visually disabled students.

17

copied everything.

18
19
20
21
22
23
24
25

THE COURT:

They didn't do that.

They just

Had that done that -You think that would have made it OK if

they had gone and asked?
MR. ROSENTHAL:

If they had asked permission of rights

holders and rights holders gave -THE COURT:

I don't even think that's conceivable, but

I gather you do.
MR. ROSENTHAL:

How do I think it's conceivable?

It

might be difficult for them to get every single author of every
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

A-1363
13
C86QautC
1

impossible to do on a scale that the defendants want here which

2

is every single book ever published.

3

THE COURT:

I'm not sure that the every single book

4

ever published has much to do with my concern.

5

read these laws, it seems to me, in conjunction with other

6

laws.

7

the American Disabilities Act, it seems to me that you now have

8

the ability to provide equal access to the blind, and that you

9

have an obligation to do so, or the defendant has an obligation

10
11

You have to

If you do read the copyright law and juxtapose it with

to do so.

What do you think about that?

MR. ROSENTHAL:

I think there is a problem with that

12

argument which basically says that once you've done something

13

illegal, like make multiple copies of all of the books, then

14

you're going to argue well now that we've done this, we have to

15

make it available to everyone.

16

THE COURT:

I didn't think this was their argument.

17

MR. ROSENTHAL:

I think that basically is, and under

18

the ADA, every entity with 15 or more employees would be

19

required then to make their books available to visually

20

disabled if they were there.

21

once you've made the copies, then you have to provide them to

22

the visually disabled.

23

THE COURT:

So, once the use has been made,

But that's only if you've broken the law.

24

My concern is whether looking at the ADA and juxtaposing it

25

with your concerns, they did break the law or they didn't.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

It

A-1364
24
C86QautC
1

owned and they can say whether they are or aren't in the

2

HathiTrust database.

3

deprive all these authors of the right for their day in court

4

because judicial efficiency would be very hard for all of them

5

to come in and start bringing claims.

We don't have to do this stage and

6

THE COURT:

That's one type of judicial efficiency.

7

MR. ROSENTHAL:

8

Finally, I just want to talk about marketing works for

Well, right.

9

one moment because it tends to get forgotten and defendants in

10

their briefing have put it at the very end of their brief, and

11

basically said if you are really going to address that we

12

should have more briefing, which is really astonishing given

13

the fact I think we filed six briefs already in this case.

14

Orphan works -- there is simply no justification for

15

defendant's orphan work program.

They came up with a system

16

where they identified works where they said we can't find the

17

owners, and if no owner comes forward in 90 days, we're going

18

to make them available for viewing and downloading in certain

19

circumstances.

20

frame, at least two of the plaintiffs works were found to be

21

orphan works.

22

minute.

23

the head of the Author Guild explained that he was able to find

24

the owner of one of the orphan works with a Google search in a

25

matter of minutes.

We filed this lawsuit in that immediate time

People came out of the woodwork and said, wait a

Those aren't orphans.

In one of your declarations,

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

A-1365
25
C86QautC
1

Now defendants have said we've suspended the orphan

2

works program, therefore, you can't adjudicate it here.

3

Despite numerous opportunities, they've never said they ended

4

it.

5

figuring out how to re-figure it and we'll do it later.

6

The orphan works program essentially is taking

They simply said we're not going to do it now.

We're

7

copyrighted works, making them fully available without

8

permission, without compensation, without accountability to

9

copyright owners.

Congress has had orphan work legislation

10

before it and hasn't acted yet.

That doesn't give the

11

defendants the right to simply decide it is time to take the

12

law in their own hands and decide, OK, Congress won't do it,

13

we're going to do it ourselves.

14

leaving aside everything else in this case, is a clear

15

copyright infringement.

So the orphan works program,

16

THE COURT:

17

I will be glad to hear from your adversary, if one or

18
19

Thank you.

more of them have something to say.
MR. PETERSEN:

Thank you, your Honor.

I know there

20

are a lot of facts for your Honor, but I think the easiest fact

21

in terms of resolution of the motions is really this, this core

22

fact, your Honor:

23

HathiTrust Digital Library unless you are print disabled.

24

HathiTrust Digital Library does not distribute plaintiffs

25

works, it does not display plaintiffs works, but scholars can

You cannot read plaintiffs books through the

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

The

A-1366
Case 1:11-cv-06351-HB Document 167

Filed 11/08/12 Page 1 of 2

~LV;:)~llllla...I~1~.:l.\.IV111

[e-mail]
Attorneys/or PlaintU!s-Appellants
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------)(
THE AUTHORS GUILD, INC., et aI,
Index No. 11 Civ. 6351 (HB)
Plaintiffs,
- againstHATHITRUST, et al.
Defendants.

---------------------------------------------------------)(
NOTICE OF APPEAL
NOTICE IS HEREBY GIVEN that all of the Plaintiffs in the above-captioned
action hereby appeal to the United States Court of Appeals for the Second Circuit from
the Opinion and Order of Judge Harold Baer, Jr., dated October 10,2012, denying
Plaintiffs' motions for judgment on the pleadings and summary judgment; granting in
part Defendants' motions for judgment on the pleadings; and granting Defendants' and
Defendant Intervenors' motions for summary judgment, and from the Judgment entered
on October 12,2012.

A-1367
Case 1:11-cv-06351-HB Document 167

Filed 11/08/12 Page 2 of 2

Edward H. Rosenthal, Esq.
Jeremy S. Goldman, Esq.
488 Madison Avenue, 10th Floor
New York, New York 10022
Phone [phone]
Fax: [phone]
Allorneys jor Plaintiffs-Appellants The Authors
Guild, Inc., et al.

FKKS 470303.vl

2

19894.300