The Authors Guild v. Google, Inc.

Filing 41

JOINT APPENDIX, volume 1 of 6, (pp. 1-300), on behalf of Appellant Jim Bouton, Joseph Goulden, Betty Miles and The Authors Guild, FILED. Service date 04/07/2014 by CM/ECF.[1196245] [13-4829]

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ADJUDICATION. Docwrent fred by Digital Humanities Scholars and Law
Proressors.(Siavoshy, Babak) (Entered: 08/03/2012)
08/0312012

1052 BRIEF re: 1051 MOTION to File Amicus BriefIN PARTIAL SUPPORT OF
DEFENDANT'S MOTION FOR SUMMARYJUDGMENT ORIN THE
ALTERNATIVE SUMMARYADJUDICATION.. DoC\llrent fred by Digital
Humanities Scholars and Law Proressors.(Siavoshy, Babak) (Entered: 08/0312012)

08/03/2012

1053 DECLARATION ofJoanne Zack in Support re: 1049 MOTION fur Summary
Judgrrem Plaintiffs' Notice ofMotionfor Partial Summary Judgment (public
Version) .. DocUllJilllt filed by Jim Bouton, Joseph Goulden, Betty Miles, The Authors
Guild. (Attachments: # 1 Exhibit 1-22, # 2 Exhibit 23, part 1, # .3. Exhibit 23, part 2, #
1 Exhibit 24-32, # ~ Exhibit 33-35, # QExhibit 36-37, # 7. Exhibit 38-41, # .!! Exhibit
42, part 1, # .2 Exhibit 42, part 2-43)(Zack, Joanne) (Entered: 08/03/2012)

08/03/2012

1054 RULE 56.1 STA1EMENT. DocUlllCnt fred by Jim Bouton, Joseph Goukien, Betty
Miles, The Authors Guild. (Zack, Joanne) (Entered: 08/0312012)

08/0312012

~

BRIEF re: lQll MOTION to File Amicus BriefIN PARTIAL SUPPORT OF
DEFENDANT'S MOTION FOR SUMMARYJUDGMENT ORIN THE
ALTERNATIVE SUMMARYADJUDICATION. (CORRECTED). DocUllJilllt filed
by Digital Hmnaniti-ls Scholars and Law Proressors.(Siavoshy, Babak) (Entered:
08/0312012)

08/0912012

.w!i MEMORANDUM OF LAW inOppositionre: .l.!l.ll MOTION to FikJ AIm:us Brief
IN PARTIAL SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT OR IN THE ALTERNATIVE SUMMARYADJUDICATION., .l.!M1
MOTION fur Leave to FikJ Amici Curiae Brief in Support of Defendant's Motion
for Summary Judgment. Plaintiffs'Memorandum in Opposition to Motionsfor
Leave to File Amicus Brief DocUllJilllt filed by Jim Bouton, Joseph Goulden, Betty
Miles, The Authors Guild. (Boni, Mi:haeI) (Entered: 08/0912012)

08114/2012

.w.z

TRUE COPY ORDER ofUSCA USCA Case Nwnber 12-2402. Petitioner, through
cO\mse~ IlDveS, pursuant to FederalRu1e of Civil Procedure 23(f), fur leave to appeal
the Dis1ri:t Court's order granting Respondents' IIDtim fur class certificatbn Upon
due consneration, it is hereby ORDERED that the petition is GRANTED. Catherine
O'Hagan Wolfu, Clerk USCA fur the Secoud Circuit. Certified: 08/1412012. New
Case No. 12-3200. (nd) Modified on 8/2812012 (nd). (Entered: 0811412012)

08114/2012

Appeal Fee Dne: fur .l.Qll USCA Order granting leave to appeal $455.00 Appeal
ree due by 8128/2012. (nd) (Entered: 08/1412012)

0811412012

1058 REPLY to Response to Motbn re: 1047 MOTION fur Leave to File Amici Cmiae
Briefin Support of Defendant's Motionfor Summary Judgment .. DocUlllCnt filed
by Am:rica Library Association, Assocation ofResearch Libraries, Association of
College and Research Libraries, Electronic Frontier FoUlldatbn et al. (Band,
Jonathan) (Entered: 08114/2012)

0811512012

1059 REPLY MEMORANDUM OF LAW in Support re: 1051 MOTION to File Amicus

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BriefIN PARTIAL SUPPORT OF DEFENDANTS MOTION FOR SUMMARY
JUDGMENT OR IN THE ALTERNATIVE SUMMARYADJUDICATION..
Docmmnt filed by Digital HumaniOOs Scholars and Law ProreSSOfS. (Siavosby,
Babak) (Entered: 08/1512012)
08115/2012

.l.Q6l)

ORDER granting .1.!M1 Motion fur Leave to File Docummt; granting lQ5l Motion to
File Ami:us Brief It i<; hereby ordered as fuJkJws: (1) The IIDtions fur leave to file
amk:i curiae brielS are granted, and the proposed brielS are accepted fur filing. (2)
PlaintiflS shall respond to the amk:i curiae brielS by September 17, 2012 in a
IrelIDrandmn of law not to exceed 40 pages. (3) The amici cmiae may not file replies.
(4) The parties' oppositions to the croSS-IIDoons fur smnmary judgmmt shall be filed
by August 24,2012. (5) The parties' replies in support of the CroSS-IIDOOns fur
smnmary jndgmmt shall be fikld by September 17, 2012. (6) Oral arguDllnt on the
IIDtions fur smnmary judgmmt shallproceed on October 9, 2012 at 10 AM .. (Signed
by Judge Deooy Chin on 8/15/2012) Ore) (Entered: 08/1512012)

0811512012

SetlReset Deadlines: (Responses due by 9117/2012), SetlReset He~~ Oral
Argument set fur 10/9/2012 at 10:00 AM befure Judge Denny Chin.) Ore) (Entered:
0811512012)

08115/2012

SetlReset Deadlines as to llM2 MOTION fur Smnmary Judgmmt Plaintiffs' Notice
ofMotionfor Partial Summary Judgment (Public Version)., l!!ll MOTION fur
Smnmary Judgment Notice ofDefendant Google Inc. :so Motion for Summary
Judgment or in the Alternative Summary Atijudication .. Responses due by
8/2412012 Ore) (Entered: 08/15/2012)

0811712012

0812812012

0812912012

1061 ORDER.: It is hereby ordered as fuJkJws: (1) By October 24, 2012, the parties shall
fikl their opposifuns to the CroSS-IIDOOns fur smnmary judgment. (2) By November
19,2012, plaintiflS shall file their opposifun to the amk:i curiae brielS, in a
IrelIDrandmn of law not to exceed 40 pages. (3) By November 19, 2012, the parties
shall fikl their replies in support ofthe croSS-lIDtions fur smnmary judgmmt. (4) Oral
arguDllnt on the IIDOOns fur smnmary judgmmt shall proceed on December 4,2012 at
2PM., (Responses due by 1111912012., Replies due by 1111912012.), (Oral
ArguDllnt set fur 12/412012 at 02:00 PM befure Judge Denny Chin.) (Signed by
Judge Denny Chin on 8/1712012) (lmb) (Entered: 08/1712012)
USCA Appeal Fees received $ 455.00 receipt mnnber 465401046514 on
0811612012 re: 1057 USCA Order granting leave to appeal pursuant to FRAP 23(t).
(nd) (Entered: 08/2812012)

.l.l!62 ORDER.: The Court i<; in receipt ofa letter from derendant Google, Inc.

(''Google'~,

dated August 17, 2012, requesting that the Court stay all proceedings in thi<; case
pending review by the Second Circuit of thi<; Court's May 31, 2012 Order granting
class certifi:aoon (the ''Class Cer1:ili:ation Order'~. Plainti1lS have not responded to
Google's letter. For the fuJkJwing reasons, the appocaoon is denied as further set furth
in this order. (Signed by Judge Denny Chin on 812812012) (lmb) (Entered:
0812912012)
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ll!23. ORDER ofUSCA (Certified Copy) USCA Case Number 12-3200. Appellant
Googk:, Inc. bas filed a IOOtion to stay Distri:t Court proceedings pending appeal of
the class certification order and appelk:es have filed a response stating that they
consent to the stay, although not to the arguIIllnts put furward in the IIDtbn as to why
Googk: expects to prevail on appeal. IT IS HEREBY ORDERED that the IOOtion to
stay proceedings pending appeal is GRANTED. Catherine O'Hagan WoJre, Clerk
USCA fur the Second Circuit. Issued As Order: 09/1712012. Certified: 09/1712012.
(nd) (Entered: 09/17/2012)

04/0712013

~

NOTICE OF CHANGE OF ADDRESS by Cindy A. Cohn on bebalfofElectronic
Frontier FoUDdatbn et al.. New Address: Electrom,; Frontier Foundatbn, 815 Eddy
Street, San Francisco, CA, USA 94109, 415-436-9333. (Cohn, Cindy) (Fntered:
04/0712013)

07/0112013

~

1RUE COPY ORDER ofUSCA USCA Case NUlDber 12-3200-cv. For the reasons
stated, we VACATE the JUIle 11,2012 order of the District Court certifYing plaintillS
proposed class and REMAND the cause to the District Court fur consIleration of the
liIir use issues, without prejudice to any renewal of the IIDtbn fur class certification
befure the District Court fullowing its decision on the liIir use defi:nse. In the interest of
judi:ia1 economy, any further appeal from the decisDns of the Distri:t Court shall be
assigned to this panel Catherine O'Hagan WoJre, Clerk USCA fur the Second Circuit.
Certified: 07/112013. (nd) (Entered: 07/0112013)

07/0112013

1066 MANDATE ofUSCA (Certified Copy) USCA Case NUlDber 12-3200-cv. Ordered,
Adjudged and Decreed that the order of the Distri:t Court is VACATED and the case
is REMANDED in accordance with the opinion of this Court. Catherine O'Hagan
WoJre, Clerk USCA fur the Second Circuit. Issued As Mandate: 07/0112013. (nd)
(Entered: 07/0112013)

07/0112013

!QQ1 ORDER: By August 5, 2013, the parties shall file their oppositions to the crossIOOtions fur swmnary judgmmt. The parties shall include any arguIIllnts in response to
the arn£i curiae brieiS in their melOOranda in opposition to the CroSS-lOOtions. The
parties' melOOranda of law shall not exceed 50 pages, including any response to the
arn£i curiae brieiS. By August 19, 2013, inmelOOranda of law not to exceed 10 pages,
the parties shall file their replies in support of the CroSS-lOOtions fur swmnary judgrrent.
Oral argument on the CroSS-lOOtions fur swmnary judgmmt will be heard on
September 5, 2013 at 10:00 AM. Responses due by 8/512013. Replies due by
8/1912013. Oral ArguIIllnt set fur 91512013 at 10:00 AM befure Judge Delll1Y Chin.
(Signed by Judge D~Cbin Sitting by Designatbn on 7/112013) (ft) Modified on
7/1212013 (ft). (Entered: 07/0112013)

07/08/2013

l!!Q8. ORDER: The briefing schedule fur the parties' CroSS-lOOtions fur swmnary judgrrent is
hereby IOOdified as fullows: (1) By August 26, 2013, the parties shall file their
oppositions to the CroSS-lOOtions fur swmnary judgrrent. The parties shall include any
arguIIllDts in response to the arn£i curiae brieiS in their meIOOranda in opposition to the
CroSS-lOOtions. The parties' meIOOranda of law shall not exceed 50 pages, including
any response to the arn£i curiae breiS. (2) By September 9,2013, in melIDranda of
law not to exceed 20 pages, the parties shall file their replies in support ofthe cross-

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lD.ltions fur sUlIl1Ila1Y judgtreDt. (3) Oral arglllIl)nt on the croSS-lD.loons fur SUIII1IIa1Y
judgtrent will be heard on September 23,2013 at 2:30 PM. SO ORDERED.
(Responses due by 812612013, Replies due by 91912013.), (OralArglllIl)nt set fur
9/23/2013 at 02:30 PM befure Judge Denny Chin.) (Signed by Judge Denny Chin
Sitting by Designation on 7/812013) (rsh) (Entered: 07/0912013)
0812612013

.l.QQ2 ENDORSED LEI IER addressed to Judge Denny Chin, from Michael J. Boni, dated
812312013, re: on behalf of an parties, plaintiflS and Google, to request that the parties

be able to file their respective, non-publi:: sealed versions of their brielS on Tuesday,
August 27, 2013. The deadline to file their SUIII1IIa1Y judgtreDt opposition lriJlS is a
day earlier, and on that date (August 26) the parties will file electronically their publi::,
redacted versions of the brie~ and will also serve one another with their uudredacted
versDns as well. ENDORSEMENT: Approved. SO ORDERED. (Brief due by
8/27/2013.) (Signed by Judge Denny Chin on 8/26/2013) Ga) (Entered: 0812612013)
0812612013

.l.!!1l! MEMORANDUM OF LAW in Opposition re: .l.!lll MOTION fur SUIII1IIa1Y
Judgtrent Notice of Defendant Google Inc. ~ Motion for Summary Judgment or in
the Alternative Summary Atijudication .. Docwmnt filed by Jim Bouton, Joseph
Goulden, Betty Miles, The Authors Guild. (Boni, Michael) (Entered: 08126/2013)

0812612013

1071 COUNTER STATEMENT TO 1043 Rule 56.1 Statement. Document fi1ed by Jim
Bouton, Joseph Goulden, Betty Miles, The Authors Guild. (Boni, Michael) (Entered:
0812612013)

0812612013

lQ12

MEMORANDUM OF LAW in Opposition re: l!M2 MOTION fur SUIII1IIa1Y
JudgtreDt Plaintiffs' Notice ofMotionfor Partial Summary Judgment (public
Version). Defendant Google Inc. ~ Opposition to Plaintiffs' Motionfor Partial
Summary Judgment. Document filed by Goog1e Inc .. (Gratz, Joseph) (Entered:
0812612013)

0812612013

1073 DECLARATION of ofMichaelJ. Boni in OppositDn re: 1031 MOTION fur
SUIII1IIa1Y Judgtrent Notice ofDefendant Google Inc. ~ Motion for Summary
Judgment or in the Alternative Summary Atijudication .. Docwrent filed by Jim
Bouton, Joseph Goulden, Betty Miles, The Authors Guild. (Attachrn:nts: # 1 Exhibit 1
(part 1 of3), # 1 Exhibit 1 (part 2 of3), # 1 Exhibit 1 (part 3 of3), # 1. Exhibit 2 (part
1 of3), # .i Exhibit 2 (part 2 013), # 2 Exhibit 2 (part 3 of3), # 1 Exhibit 3, # 8.
Exhibit 4, # .2. Exhibit 5, # 10 Exhibit 6, # 11 Exhibit 7, # 12 Exhibit 8, # 13 Exhibit 9,
# 14 Exhibit 1O)(Boni, Michael) (Entered: 0812612013)

0812612013

.!.!ill: DECLARATION ofPaul Aiken in Opposition re: l!!ll MOTION fur SUIII1IIa1Y
Judgtrent Notice of Defendant Google Inc. ~ Motion for Summary Judgment or in
the Alternative Summary Atijudication .. Docwrent filed by Jim Bouton, Joseph
Goulden, Betty Miles, The Authors Guild. (Attachrn:nts: # 1 Exhibit A, # 1 Exhibit B,
# 1 Exhibit C, # 1. Exhibit D, # ~ Exhibit E, # QExhibit F, # I Exhibit G, # .!! Exhibit Ii)
(Boni, Michael) (Entered: 08126/2013)

08126/2013

.!.!ill. DECLARATION ofJoseph C. Gratz in OppositDn re: .llM2 MOTION fur SUIII1IIa1Y
Judgtrent Plaintiffs' Notice ofMotionfor Partial Summary Judgment (public

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Version} .. Docmnent filed by Google Inc .. (Attachments: # 1 Exhibit 1, # 2. Exhibit 2,
# J. Exhibit 3, # 1. Exhibit 4, # ~ Exhibit 5, # .!i Exhibit 6, # 1 Exhibit 7, # ll. Exhibit 8, #
.2 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # II Exhibit 13, # 14
Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19
Exhibit 19, # 2Q Exhibit 20)(Gratz, Joseph) (Entered: 08/26/2013)
08/26/2013

.l.lllii DECLARATION of Scott Do~ in Opposition re: .l.!M2 MOTION fur Summary
Judgrrent Plaintiffs' Notice ofMotionfor Partial Summary Judgment (public
Version) .. Docmnent filed by Google Inc .. (Gratz, Joseph) (Entered: 08/26/2013)

08/26/2013

1077

COUNTER STATEMENT TO 1054 Rule 56.1 StateJmnt. Docmnent filed by
Google Inc .. (Gratz, Joseph) (Entered: 08/26/2013)

08/26/2013

1078

AFFIDAVIT OF SERVICE ofGoogle Inc.'s Responses and Objections to PlaintillS'
StateJmnt of Undisputed Facts in Support of their Motion fur Partial Summary
Judgrrent (provisionally filed umler seal) served on Mi:hael J. Boni and Joanne E.
Zack, Counsel fur PlaintifIS on August 26, 2103. Docmnent filed by Google Inc ..
(Gratz, Joseph) (Entered: 08/26/2013)

08/27/2013

1079

SEALED DOCUMENT placed in vauh.(mps) (Entered: 08/27/2013)

08/27/2013

1080

SEALED DOCUMENT placed in vauh.(mn) (Entered: 08/27/2013)

08/29/2013

l!lll.l ORDER: The Cowt is in receipt of a letter from pIaintiflS' counse~ dated August 28,
2013, requesting a two-week extensIm oftbe schedule fur briefing and argmmnt of

the parties' summary judgrrent motions. Defendant Google, Inc. opposes thi; request
The request i; granted in part and denied in part, as fulhws: The deadline fur plaintiflS
to submit tbeirreplybriefis extended to Monday, September 16, 2013. The request
fur adjowmnent of oral argurrent is denied. The date ofSeptemher 23,2013 was set
on July 8, 2013, more than five weeks ago. The Cowt will not adjomn oral argurrent
because new counsel in this eight-year okllitig;ltion i; unavailable on September 23rd
because he will be attending a confurence on copyright law. (Replies due by
9/16/2013.) (Signed by Judge Denny Chin, Sitting by Designation on 8/29/2013) Qa)
(Entered: 08/29/2013)
09/04/2013

.l.l!82. NOTICE OF APPEARANCE by Edward Hemy Rosenthal on behalf of The Authors
Gnikl.

09/04/2013

(Ros~

Edward) (Entered: 09/04/2013)

.l.!!ll.3. NOTICE OF APPEARANCE by Jeremy Seth Goldman on behalfofThe Authors
Gnikl. (Goldman, Jeremy) (Entered: 09/04/2013)

09/09/2013

1084 REPLY MEMORANDUM OF LAW in Support re: 1031 MOTION fur Summary

Judgrrent Notice of Defendant Google Inc. s Motion for Summary Judgment or in
the Alternative Summary Adjudication .. Docmnent filed by Google Inc .. (Gratz,
Joseph) (Entered: 09/09/2013)

09116/2013

~

REPLY MEMORANDUM OF LAW in Support re: l!M2 MOTION fur Summary
Judgrrent Plaintiffs' Notice ofMotionfor Partial Summary Judgment (public
Version) .. Docmnent filed by Jim Bouton, Joseph Goulden, Betty Miles, The Authors
Gnikl. (Bom, Mi:hael) (Entered: 09/16/2013)

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10/0312013

.l.QRQ TRANSCRIPT ofProceedings re: ARGUMENT held on 912312013 befure Judge
DellllY Chin. Court ReporterlTranscriber: Thomas Murray, [phone].
Transcq,t may be vX:wed at the court public terminal or purchased through the Court
ReporterlTranscriber befure the deadline fur Release ofTranscq,t Restricfun After
tbat date it may be obtained through PACER. RedacfunRequest due 1012812013.
Redacted Transcq,t Deadline set fur l1nt2013. Release ofTranscq,t Restricfun set
fur 1I4/2014.(Rodriguez, Soman) (Entered: 10/03/2013)

10/0312013

!QR1 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given tbat an

ofli:ial transcq:,t of a ARGUMENT proceeding held on 9123/13 has been filed by the
court reporter/transcriber in the above-captioned matter. The parties have seven (7)
calendar days to file with the court a N olice of Intent to Request Redaction of this
transcq,t. If no such Notice is filed, the transcq,t may be made remJteIy electronically
available to the public without redacfun after 90 cak:ndar days ... (Rod.riguez, Soman)
(Entered: 10/0312013)
1111412013

~

OPINION re: #103753 .l.!!ll MOTION fur Surnrmry Judgment Notice of
Defendant Google Inc. Motion for Summary Judgment or in the Alternative
Summary Acijudication filed by Google Inc., 1049 MOTION fur Swmnary Judgment
Plaintiffs' Notice ofMotion for PartiLlI Summary Judgment (public Version) filed

s

by Betty Miles, The Authors Guild, Joseph Goulden, Jim Bouton For the reasons set
furth in this Opinion, plaintiflS' Imtion fur partial swmnary judgm:nt is denied and
Google's Imtion fur swmnary judgm:nt is granted. Judgment will be entered in mvor of
Google dismissing the Complaint. Google shall submit a proposed judgm:nt, on notice,
within five business days hereof (Signed by Judge D~ Chin on 11/1412013) (tro)
(MainDoc\llIllnt 1088 replaced on 1111412013) (tro). Modified on 11119/2013 (ca).
(Entered: 11114/2013)
1112712013

.l.!!R2 JUDGMENT tbat, 1. Plaintiffi;' Motion fur Partial Swmnary Judgment is denied; 2.
Defendant's Motion fur Surnrmry Judgment is granted; 3. PlaintiflS' claims are
dismissed with prejudice; 4. Costs in this action are awarded to Defendant, as the
prevailing party in this acfun; and 5. Any application fur attorneys' rrmst be made
within 14 days after entry ofjudgm:ntpursuant to Fed. R Civ. P. 54(d)(2)(B)(i).
(Signed by Circuit Judge ~ Chin on 11127/13) (Attacbtrents: # 1 Notice ofRigbt
to Appeal)(ml) (Entered: 1112712013)

11127/2013

12/0612013

12/0912013

Tenninate Transcq,t Deadlines (ml) (Entered: 1112712013)
1090 FILING ERROR - DEFICIENT DOCKET ENTRY - FIRST MOTION fur
Attorney Fees. Docwmnt filed by Writers' Representatives LLC.(Chn, Lynn)
Modified on 12/912013 (db). (Entered: 12/06/2013)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT
DOCKET ENTRY ERROR. Note to Attorney Lyon T. Chu to RE-FILE
Document 1ll2ll FIRST MOTION for Attorney Fees. ERROR(S): No
Signature or s/. (db) (Entered: 12/0912013)

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ll!2l AMENDED JUDGMENT am:nding ~ Judgnrnt, that, 1. PlaintifIS' Motion fur
Partial SUIII!IIIII)' Judgnrnt is denied; 2. Delendant's Mofun fur SUIII!IIIII)' Judgnrnt is
granted; 3. PlaintiflS' claims are dismissed with prejudice; 4. Costs in this action are
awarded to Defundant, as the prevailing party in this action; aud 5. Any application fur
attorneys' lees must be IIllde within 14 days of the final resolution of all appeals or, if
no appeal is taken, within 14 days after the expirationofti= fur filing a ootice of
appeal; 6. The Cklrk of the Comt shaD close this case. (Signed by Judge Denny Chin
on 12/10/13) (Attachments: # 1 Notice ofRigbt to Appeal)(ml) (Entered: 12/11/2013)

12/23/2013

.l.Q22 NOTICE OF APPEAL from ll!2l Amended Judgnrnt" .!Q82 Judgnrnt". Docurrent
fikJd by Association of American Publishers, Inc., Jim Bouton, Canadian Standard
Association, Paullli:kson, Jobn Wiley & Sons, Inc., Herbert Mitgang, Pearson
Educafun, Inc., The Authors Guild, The McGraw-Hill Companies, Inc .. Filing lee $
505.00, receiptmnnber 0208-9204161. FormC and FormD are due within 14 days
to the ComtofAppeals, Second Circuit. (Rosentha~ Edward) (Entered: 12/23/2013)

12/23/2013

TransmissDn ofNotice ofAppeal and Certified Copy ofDocket Sheet to US Comt of
Appeals re: 1092 Notice ofAppe~. (00) (Entered: 12/23/2013)

12/23/2013

Appeal Record Sent to USCA (Electronic Fik:). Certified Indexed record on Appeal
Electronic Files ONLY fur 1092 Notice of Appe~ fikJd by The Authors Guild,
Canadian Standard Association, Herbert Mitgang, Jim Bouton, Jobn Wiley & Sons,
Inc., Paullli:kson, Association of American PubJiclhers, Inc., The McGraw-Hill
Companies, Inc., Pearson Educafun, Inc. were transmitted to the U.S. Court of
Appeals. (APPELLANT'S COUNSEL IS RESPONSIBLE FOR THE
PRYSICALSUPPLE~NTALINDEXFORANYANDALLNON~CF

DOCU~NTS,

ONCE THE CASE IS OPENED IN THE SECOND
CIRCUIT) (nd) (Entered: 12/23/2013)

I
I

PACER Service Center
Transaction Receipt

I
IpAClRLogIn: IIfg0108
IDe. cripion:

03/2112014 15:33:52

liruent Code:

1019894.800
1

IInoclret Report IIsearch Criteria: 11:05-cv-08136-DC
1

IBilIahle Pages: 130
1

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Filed 09/01/09 Page 1 of 49

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
The Authors Guild, Inc., et al.,

:
:

Plaintiffs,

:

Case No. 05 CV 8136-DC

:
vs.

OBJECTION OF AMAZON.COM,

:
Google, Inc.

:

INC., TO PROPOSED

:

SETTLEMENT

:
Defendant.

:

Filed Electronically

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

AMAZON.COM, INC.
David Zapolsky, Esq. (DZ-8058)
[e-mail]
Vice President & Associate General Counsel
Litigation & Regulatory Affairs
1200 12th Avenue South
Suite 1200
Seattle, Washington 98144
Telephone: [phone]
Facsimile:
[phone]

IRELL & MANELLA LLP
David Nimmer
(CA State Bar No. 97170)
(Pro Hac Vice Application Pending)
[e-mail]
Alexander F. Wiles
(CA State Bar No. 73596)
(Pro Hac Vice Application Pending)
[e-mail]
1800 Avenue of the Stars
Suite 900
Los Angeles, California 90067-4276
Telephone: [phone]
Facsimile:
[phone]
Counsel for Objector Amazon.com, Inc.

2043089

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INTRODUCTION
Amazon.com, Inc. (“Amazon”) objects to the proposed settlement of this action and gives
notice that it intends to appear at the fairness hearing currently scheduled to be held on
October 7, 2009. Amazon is a member of the class by virtue of its ownership of a copyright duly
registered with the United States Copyright Office. Amazon also brings a unique perspective to
this Court because it has engaged in a book scanning project very similar to Google’s, with one
major distinction: As to books still subject to copyright protection, Amazon has only scanned
those for which it could obtain permission to do so from the copyright holder. Amazon’s
scanning project has to date resulted in the lawful scanning of over 1 million English-language
works and 3 million books in total.
The settlement proposed by the parties to this case should not be approved. It is unfair to
authors, publishers, and others whose works would be the subject of a compulsory license for the
life of the copyright in favor of Google and the newly created Book Rights Registry. It is
anticompetitive and violates antitrust laws because it provides Google an effective monopoly in
the scanning and exploitation of millions of works whose copyright holders cannot be located or
choose not to involve themselves in this class action. It also creates a cartel of authors and
publishers—the Books Rights Registry—operating with virtually no restrictions on its actions,
with the potential to raise book prices and reduce output to the detriment of consumers and new
authors or publishers who would compete with the cartel members. Indeed, the agreement is
even arguably unlawful on its face because it constitutes price fixing by horizontal competitors—
namely, the Rightsholders, who are agreeing collectively on a mechanism for setting the highest
possible prices to be charged for their works. Finally, the proposed settlement improperly seeks
to stretch the boundary of this Court’s power beyond its lawful limits, using the class action
mechanism embodied in Rule 23 of the Federal Rules of Civil Procedure to create a massive and
complex business arrangement of perpetual duration among class members, Google and the
Registry. The settling parties propose to force this business arrangement upon class members by
requiring, in contravention of controlling Second Circuit authority, that, as part of the settlement,

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they release Google and others from claims of copyright infringement for future uses of
copyrighted works, some of which are totally divorced from the current facts and connected to
this case only under the guise of being an anticipated project of the business venture created by
the Settlement Agreement.
Amazon recognizes the surface appeal of the proposed settlement: Digitization of books
creates tremendous opportunities for public benefit, and the digitization of so-called “orphan
works” that this settlement allows would enhance those benefits. Indeed, Amazon has long
supported efforts to pass copyright reform legislation that would make it easier for booksellers
and the public to gain access to these books.
Digitization of books, however, is far from the first technological advance requiring
harmonization of the potential public benefits with existing copyright law. As detailed below, in
each such instance in the past, that task has been performed by the United States Congress.
Class actions, though a common vehicle to challenge the infringement made possible by new
technologies, have never until this case been used to set out nationwide the rules and regulations
by which use of those new technologies would be determined to be lawful or unlawful. The
reasons for this history seem obvious, especially when juxtaposed against the public policy
issues raised by the current settlement: Class actions can resolve disputes between parties and
can clarify the law for others, but they cannot make changes to the rules in a way that applies
evenhandedly to the entire universe of copyright holders and potential users of the new
technologies. Nor is a court holding a hearing on the fairness of a class action settlement
equipped to balance and make the adjustments necessary to accommodate the many public
interests at stake when a new technology emerges that offers both the promise of public benefit
and the danger of abuse of both copyright holders and consumers.
FACTUAL BACKGROUND
Amazon was founded in 1994. It started as an online seller of books. While Amazon has
since diversified to sell a wide range of consumer products, sales of media products accounted
for 58 percent of Amazon’s net sales in 2008. Prior to January 5, 2009, Amazon duly submitted

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to the United States Copyright Office an application, deposit, and fee to register the work: DVD
On Demand: A CustomFlix® Guide to Profitably Distributing Your Film with Inventory-Free
Fulfillment by Darren Giles.
Beginning in 2002, Amazon commenced a book-scanning program in order to enhance
the quality of services it offered to customers who use its web-based bookstore. Amazon
initially started its program by scanning only the front and back covers and small excerpts of
books. It then made those parts available for viewing by customers on the web pages of
Amazon.com where the books were displayed for sale. Amazon called this program “Look
Inside the Book.” In 2003, Amazon dramatically expanded this program, now called “Search
Inside.” It approached publishers for permission to scan the entire contents of books and then to
display to customers up to 20 percent of those books in response to specific customer queries.
Today, Amazon has 3 million unique titles scanned and available worldwide to customers who
wish to search inside those books and display the text surrounding the words they have queried.
Amazon estimates that its book detail pages are viewed tens, if not hundreds, of millions of times
each week. Amazon has been able to accomplish this level of scanning and electronic
availability even though it has scanned only books in the public domain and books for which it
has obtained permission from the copyright owner. Amazon does not scan or display on its
website in-copyright works for which no rightsholder can be located (referred to as “orphan
works”).
Google first announced its book scanning project in October 2004. According to
published reports, this program has two components. Google’s “Partner Program” allows
authors or publishers to sign up with Google and provide copies of their books to Google for
electronic display on the Google website. According to Google, that program now has over
20,000 publisher participants, with published reports suggesting that about 1 million books have
been scanned, made fully searchable and available to be previewed on Google’s website as a
result of this program.1 (“Previewing” refers to the capability of searching the text of a book and
1

See Posting of David Drummond, New chapter for Google Book Search, to The Official
Google Blog, http://googleblog.blogspot.com/2008/10/new-chapter-for-google-book-search.html

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then displaying the text surrounding the word for which the user has searched.) Plaintiffs did not
challenge the Google “Partner Program” in their complaint.
Beginning in late 2004, Google also entered into a series of “Digitization Agreements”
with various public and university libraries to create digital archives of the libraries’ collection of
books. The Authors Guild, Inc., et al.’s Second Amended Complaint ¶¶ 4, 47. Those
agreements allow Google “to reproduce and retain for its own commercial use a digital copy of
the libraries’ archives.” Id. ¶ 4. They also require Google to provide each library with a digital
copy of what Google had scanned from that library’s collection. Declaration of David Nimmer
in Support of Objection of Amazon.com, Inc. (“Nimmer Decl.”), Exs. A & B (Digitization
Agreement between Google and the University of Michigan, and Amendment). Google never
sought to obtain permission from copyright owners to copy, use or display works included in the
library collections and thus made no effort to exclude “orphan works” from its digitization
program.
According to Google, it has now scanned seven million books. See Posting of
Drummond, New chapter for Google Book Search,
http://googleblog.blogspot.com/2008/10/new-chapter-for-google-book-search.html. Of the incopyright works that Google has digitized, only those that are in its partner program are available
for previewing on Google’s website. Id. Google displays only “snippets” of in-copyright books
scanned without copyright holder permission (i.e., in response to a user query, Google displays
portions of the affected work that contain the queried language, plus a few surrounding lines on
either side). Google also has announced that it expects to scan in the future millions more books
of which it has not yet made digital copies. Id.
In their Second Amended Complaint (“SAC”), filed several days after the parties
announced the tentative settlement, plaintiffs allege that Google’s unauthorized digitization and

(Oct. 28, 2008, 7:14 AM and 7:55 AM); see also Juan Carlos Perez, In Google Book Settlement,
Business Trumps Ideals, PC World, Oct. 30, 2008, available at:
http://www.pcworld.com/businesscenter/article/153085/in_google_book_settlement_business_tr
umps_ideals.html.

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display of their works constitutes copyright infringement. Plaintiffs assert that by engaging in
these acts “Google has derived, and intends to continue to derive, revenue from this program by
attracting more viewers and advertisers to its website.” SAC ¶ 7; see id. ¶¶ 49, 63. Nowhere in
their complaint do plaintiffs accuse Google of selling printed or electronic copies of their books
or even of having a plan to do so.
In October 2008, the parties announced that they had reached a settlement subject to
certain conditions, among them court approval. The settlement is not so much a release of
claims for past conduct as an agreement on behalf of a class of millions of authors and
publishers, both known and unknown, to engage in a complex business arrangement with Google
for the perpetual exploitation of millions of copyrighted works. The settlement releases Google
both for its past infringement and for future infringement in exchange for an upfront payment
and an agreement by Google to pay 63 percent of the revenues Google earns from future
exploitation of the copyrighted works. Settlement Agreement dated October 28, 2008
(“Proposed Settlement”) §§ 2.1, 10.1, 10.2. Many of the contemplated uses of those works are
things that Google has not yet done, e.g., sales of subscriptions to an electronic book database
and sale of online access to books. See, e.g, id. §§ 4.1, 4.2. The settlement also releases nonparties, including specifically the libraries that made, or in the future choose to make, their
collections available to Google to be digitized. See id. §§ 10.1, 10.2.
The Proposed Settlement creates a new entity, called the Books Rights Registry (the
“Registry”), consisting of the entire “Author Sub-Class” and “Publisher Sub-Class.” See id.
§ 6.1, see also id. §§ 1.14, 1.120. The Proposed Settlement charges the Registry, acting as a
cartel for its members, and Google with responsibility for determining the prices to be charged
institutions who purchase subscriptions to the digitized collection and provides that, under
Registry and Rightsholder oversight, Google will use a Google “Pricing Algorithm” to set prices
for consumers who purchase books. Id. §§ 4.1, 4.2. Those provisions explicitly provide that
Google’s task will be to “find the optimal . . . price for each Book and, accordingly, to maximize
revenue for each Rightsholder.” Id. § 4.2(b)(i)(2).

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The Registry is also charged with negotiating collectively on behalf of the entire class to
allow Google to pursue “new revenue models” such as “Print on Demand,” “Custom
Publishing,” “PDF download,” “Consumer Subscription Models,” and the provision of
“Summaries, Abstracts and/or Compilation” of books. Id. § 4.7. The Registry has no ability to
enter into similar business arrangements with entities besides Google except in two limited
circumstances: (1) if an individual author or publisher explicitly gives it permission to do so, see
id. § 6.2(b)(iii), Attach. I § 8.B; or (2) if Google fails within five years to implement a consumer
book purchasing program and fails to begin selling institutional subscriptions, the Registry can
negotiate substitute arrangements with third parties.2 Id. §§ 3.7(c), 1.34.
Other provisions of the Proposed Settlement set forth circumstances under which a
Rightsholder may ask that his or her work not be digitized, used or displayed by Google and state
that the authority of the Registry to negotiate on behalf of Rightsholders is non-exclusive, i.e.,
Rightsholders retain the authority to engage in separate negotiations. See id. §§ 3.5, 2.4. Yet
another provision of the Proposed Settlement addresses the certainty that many Rightsholders
will not sign up with the Registry, either because they choose not to do so or because they cannot
be found, and thus will not be entitled to share in the revenues the Registry receives, leaving
substantial “unclaimed funds.” Id. § 6.3. That provision mandates that the Registry distribute
“unclaimed funds” in such a way that Rightsholders who do sign up with the Registry will
benefit from Google’s exploitation of works of those who do not sign up. Id.

2
If Google enters into an agreement with the Registry that covers new revenue models,
the settlement provides that Google is released from liability, including liability for copyright
infringement, for actions taken pursuant to such an agreement. Id. § 10.1. Similarly, for third
parties who copy or use copyrighted works in reliance on an agreement with the Registry
negotiated following Google’s failure to pursue a business model, the settlement purports to
provide a release of claims of infringement that could otherwise be brought by the copyright
holder. Id. § 3.7(c). Both releases apply even though the rightsholder in such a situation never
gave the Registry permission to negotiate on his or her behalf. Id.

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ARGUMENT
I.

The Proposed Settlement Should Be Rejected Because Congress, Not This Court, Is
The Proper Body to Establish a Regime for the Digitization and Use of Works
Whose Copyright Holders Cannot Be Found.
A.

Class actions in copyright infringement cases have never been used to
legislate changes in the law.

Digitization presents an enormous opportunity for public good. The existence of large
numbers of “orphan works” and works whose copyright holders choose to remain aloof from
licensing poses a barrier to the full exploitation of this new technology. Amazon knows this as
well as anyone, given that it has devoted massive resources over the past seven years to
obtaining the rights to digitize books and then actually doing so. But, what the parties seek to do
through the Proposed Settlement—using Rule 23 of the Federal Rules of Civil Procedure to
impose a compulsory license on all Rightsholders who do not affirmatively opt out of the class
and then applying that license to millions of “orphan works”—represents an unprecedented
rewriting of copyright law through judicial action.
The problem posed by the advance of technology in this case is far from unique in the
annals of copyright. Indeed, the history of copyright law is one of accommodation to
technology. Not only was the world’s first copyright statute enacted as a consequence of the
invention of the printing press, but successive advances in communications throughout the
twentieth and twenty-first centuries have confronted the law time and again with challenges
about how it will adapt. Myriad and distinct rules now govern, depending on whether the subject
exploitation is webcasting of musical compositions, making a sound-alike version of a popular
recording, cablecasting over-the-air television signals, and on and on. But, amidst all of these
myriad rules, one thing stands out—the complexity that marks the various features of the law
does not result from settlements of class action lawsuits; rather, it uniformly comes from
Congressional intervention.
If class actions for copyright infringement arising from technological advances were new
or rare, the absence of any examples of systemic change through settlements might be less
telling. But, they are not. To the contrary, class actions have been numerous and varied, and

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none of them has ended in an agreement that operates like a legislative initiative. Rather,
whether settled or not, those class actions have addressed the dispute between the parties over the
subject activity and, depending upon how they resolved it, the conduct has either proceeded or
stopped.
One good example arises from the advent of the photocopying machine. In American
Geophysical Union v. Texaco, Inc., 802 F. Supp. 1 (S.D.N.Y. 1992), publishers brought a class
action “on behalf of themselves and others similarly situated.” Id. at 1. The district court found
that Texaco’s use of copying machines to copy journal articles constituted copyright
infringement and awarded judgment to plaintiffs. Id. at 28. On appeal, a divided panel of the
Second Circuit affirmed. 60 F.3d 913 (2d Cir. 1995).
The result of that successful class action was to resolve the pertinent legal doctrines in
favor of the copyright owners. Following similar results in other suits against photocopying
services, business practices in the United States adjusted to the now clarified legal rules. See
Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522, 1547 (S.D.N.Y. 1991) (granting
injunctive relief against copyshop chain); Princeton Univ. Press v. Michigan Doc. Servs., Inc.,
99 F.3d 1381 (6th Cir. 1996) (en banc) (holding that copyshop engaged in copyright
infringement in producing coursepacks and remanding for issuance of tailored injunction, which
would apply against present and future copyrighted works).
The history of photocopying litigation is as notable for what it did not accomplish. The
plaintiffs in the litigation did not agree that Texaco and Kinko’s could continue to engage in their
photocopying conduct, and increase its scope exponentially, in exchange for payment to the class
members. Neither did the parties purport to bind to any such agreement a large class of
rightsholders who may not even have known about the lawsuit. Instead, the class plaintiffs used
the court system for its designated purpose—to obtain judicial redress of their grievance. Having
prevailed, they thereafter enforced their rights, and affected businesses largely altered their
practices lest they be held culpable again for copyright infringement.

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Another example, involving a class action against digital taping, illustrates how the
parties to a class action can advance copyright law to address the challenges posed by new
technologies. In Cahn v. Sony Corp., No. 90 Civ. 4537 (S.D.N.Y. filed July 9, 1990), veteran
songwriter Sammy Cahn brought a class action “on behalf of all owners of copyrights in musical
compositions. . . .” Nimmer Decl., Ex. C (Complaint in Cahn v. Sony) ¶ 10. The suit targeted
the imminent sale of digital audio tape (“DAT”) recorders and blank cassettes, alleging that Sony
has “inaugurat[ed] a new era in unauthorized home taping of copyrighted musical compositions.
For the first time, a home taper will be able to make perfect copies of . . . compact discs.” Id.
¶ 1. The complaint in this class action prayed for injunctive relief against that impending
technology. Id. ¶ B.
But matters never went that far. Instead, the parties resolved their dispute by settling the
litigation and jointly agreeing to ask Congress to amend the Copyright Act. Congress passed the
resulting bill on October 28, 1992. See Pub. L. No. 102-563, 106 Stat. 4237. The result was the
Audio Home Recording Act of 1992, an act whose legislative history even recounts the role that
the litigation played on the path towards formulating that legislation. H.R. Rep. 102-873, pt. 1,
at 10 (1992) (noting that bills before Congress resulted from successful settlement negotiations
among litigants).
The history of this litigation is again notable for what the parties did not do. In theory,
the parties to Cahn v. Sony could have agreed to a settlement agreement that would have
operated solely for the benefit of the named defendant, empowering Sony Corp. to be the only
entity within the United States authorized to purvey DAT recorders, and channeling monopoly
profits on that basis to the members of the plaintiff class. But, the parties did not choose that
path. Due regard for the different roles assigned the legislature and the judiciary constrained
them to present their overhaul of copyright laws to the only body empowered to bring them to
fruition, namely the Congress of the United States.

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purchase books and use book databases. As the sole representative of the Rightsholders, the
Registry itself would create a danger to healthy competition, but the Proposed Settlement adds an
additional dimension to that threat by anointing a sole distributor, Google, for “orphan works”
and perhaps millions of other works. In stark contrast to the non-discriminatory dealing imposed
by the consent decrees on ASCAP and BMI, the Proposed Settlement presents the imminent
danger of installing Google as a monopolist through an arrangement that results in Google, and
only Google, having access to a large percentage of the titles in existence. This danger arises
directly from the Proposed Settlement—by compelling participation in a business arrangement
with Google by all who do not affirmatively opt out, the Proposed Settlement itself is the
mechanism for collective action by Rightsholders in selecting a distributor.
Even though ASCAP and BMI represent only members who affirmatively elected to join,
both were compelled to submit to consent decrees that require them to license all similarlysituated users on a non-discriminatory basis. See ASCAP Decree, 2001 U.S. Dist. LEXIS 23707,
at *10, *12-*14, *15; BMI Decree, 1966 U.S. Dist. LEXIS 10449, at *7-*8, *10, *11. The
Proposed Settlement’s provisions work in the opposite manner. Section 6.2(b)(iii) provides that
the Registry will be allowed “to the extent permitted by law, [to] license Rightsholders’ U.S.
copyrights to third parties,” which, as interpreted by the Settlement Notice, means that the
Registry would “represent the interests of the Rightsholders . . . including with companies other
than Google (subject to the express approval of the Rightsholders of the Books involved in such
other commercial arrangements),” Proposed Settlement Attach. I § 8.B (emphasis added); see
also Proposed Settlement § 2.4 (authorizations to Google are non-exclusive, so individual
Rightsholders may license others). For the “orphan works,” however, the Registry cannot
license entities besides Google (because, by definition, the Registry cannot obtain an express
authorization to do so from missing Rightsholders).18
18

By definition, the magnitude of this state of affairs is also impossible to quantify—but
it is indisputably very large. A recent book published by Yale University Press estimates over
95% of books published in the twentieth century are under copyright protection yet
commercially unavailable, and a “substantial proportion of that total is made up of orphan
works.” James Boyle, The Public Domain 10 (2008).

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The sale of books or subscriptions to a database of scanned works is conduct in which Google
has not yet engaged and, because of criminal sanctions, likely would never engage without a
clear license to do so. See 17 U.S.C. § 506(a) (defining copyright infringement as criminal
offense when undertaken willfully and for commercial advantage). That conduct is thus not at
issue in the litigation. Likewise, “new revenue models” and “future amendments” to the
settlement are by definition not at issue in this litigation as they do not yet exist.28
More egregiously still, the settling parties purport to limit relief against Google even
when it operates outside the parameters of the business arrangement contemplated by the
Proposed Settlement. A review of the dense language of the Settlement Agreement reveals that
it extends to “Other Google Programs” (which may or may not yet be in existence); in effect, it
creates a private copyright universe in which Rightsholders who do not opt out of the class have
fewer rights following infringement by Google than they would have under copyright law
against third parties, such as Amazon, who engage in exactly the same conduct. See, e.g.,
Proposed Settlement § 3.5(c)(ii)(5). Of course, this conduct could not conceivably fall within the
“identical factual predicate” of the ongoing litigation.29 This benefit to Google from the
28

Even Dan Clancy, Engineering Director for Google Book Search, acknowledges the
breadth of the settlement’s releases compared to what Google could have achieved through
litigation and final judgment. In an interview with the Library Journal, Clancy said:
The settlement was driven by what we felt was, in the end, better for everyone
and better for users in particular. . . . This settlement is an opportunity to do what,
I think, from a user perspective is far better. The snippets we’ve been showing
are a far cry from what the user wants, and really the only solution was a
partnership. We assume we would have gone through the courts and won. But
once we won, we still would’ve had snippets.
Andrew Richard Albanese & Norman Oder, Corner Office: Google’s Dan Clancy, Libr. J.,
May 1, 2009, at 26, 26, available at http://www.libraryjournal.com/article/CA6652445.html.
29
This portion of the Settlement Agreement focuses on books licensed before 1992 with
no explicit grant of electronic rights. Given that copyright subsists in works published since
1923, it affects seven decades of literary production, with correspondingly great effects. To
appreciate that status, let us imagine that Google has already scanned Lonesome Dove and
included it in the Google Books Program, that Technology X is invented in 2016, and that
Google decides in 2020 to inaugurate widescale exploitation of books via that new technology,
including Lonesome Dove. To the extent that author Larry McMurtry objects to that exploitation
in 2021 (in the same way that previous litigation contested the scope of his grant of book rights
to his publisher in Lonesome Dove at the dawn of the age of audio books), a dispute may develop
between author and publisher. The Settlement Agreement goes out of its way to immunize
Google from any liability for copyright infringement under those circumstances. Proposed

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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
The Authors Guild, Inc., Association of American :
Publishers, Inc., Associational Plaintiffs, and
:
:
Herbert Mitgang, Betty Miles, Daniel Hoffman,
:
Paul Dickson, Joseph Goulden, The McGraw-Hill :
Companies, Inc., Pearson Education, Inc., Penguin :
Group (USA) Inc., Simon & Schuster, Inc., and
:
John Wiley & Sons, Inc., individually and on
:
behalf of all others similarly situated,
:
:
Plaintiffs,
:
:
v.
:
:
Google Inc.,
:
:
Defendant.
:
:
---------------------------------------------------------------x

MICROSOFT CORPORATION
Thomas C. Rubin (TR8845)
Chief Counsel for Intellectual Property Strategy
[e-mail]
Jule L. Sigall
Senior Policy Counsel
[e-mail]
Legal and Corporate Affairs
One Microsoft Way
Redmond, WA 98052
[phone]

Case No. 05 CV 8136 (DC)

OBJECTIONS OF MICROSOFT
CORPORATION TO
PROPOSED SETTLEMENT
AND CERTIFICATION OF
PROPOSED SETTLEMENT
CLASS AND SUB-CLASSES

MONTGOMERY, McCRACKEN,
WALKER & RHOADS, LLP
Charles B. Casper
123 South Broad Street
Philadelphia, PA 19109
[phone]
[e-mail]
R. Montgomery Donaldson
1105 N. Market Street
Suite 1500
Wilmington, DE 19801
[phone]
[e-mail]
Attorneys for Microsoft Corporation

Dated: September 8, 2009

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INTRODUCTION
“The final settlement is a complex license, involving a worldwide class of millions of
copyright owners, and resembles a joint venture among publishers, authors, Google and
the libraries that provide books to Google for scanning.”
-- Counsel for the Publisher Sub-Class1
The purpose of class action is to resolve a legal dispute, not launch a “joint venture.”
Google and the three authors and five publishers who filed these actions ask the Court to
conscript the vast majority of the world’s copyright owners in books into this “joint venture” that
would create a monopoly in digital books. The proposed settlement is unrelated to the narrow
legal dispute before the Court and, if approved, would constitute an unprecedented misuse of the
judicial system. It invades the exclusive power over copyright that Article I of the Constitution
grants to Congress and exceeds the Court’s authority under Rule 23 and Article III of the
Constitution. The proposed settlement must be rejected.
The complaints that commenced these cases in 2005 challenged the Google Library
Program, which scanned books from library shelves to make them electronically searchable on
Google’s website in order to display brief excerpts in response to searches. The proposed
settlement does not resolve this narrow issue, but rather confers on Google a new monopoly by
authorizing Google (and Google alone) to engage in the wholesale commercial exploitation of
entire copyrighted books. The broad uses granted Google include “Institutional Subscriptions,”
“Consumer Purchases” and “New Revenue Models,” as well as “Non-Display Uses”

1

Debevoise & Plimpton LLP, Debevoise advises worldwide class of publishers and Association of American
Publishers in landmark settlement with Google, Nov. 25, 2008, available at
http://www.debevoise.com/newseventspubs/news/RepresentationDetail.aspx?exp_id=a3dba5c6-7e25-4b70-a9c70156917fee0d. (Ex. A).

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encompassing a wide array of valuable uses for which no compensation whatsoever will be paid
to class members.2
Millions of copyright owners around the world who did not participate in and do not even
know about this litigation – many of whose works Google has not even scanned – stand on the
verge of having their copyrights infringed in ways exponentially greater than the conduct
challenged in the complaints. A class action settlement is the wrong mechanism, this Court is
the wrong venue, and monopolization is the wrong means to carry out the worthy goal of
digitizing and increasing the accessibility of books. Indeed, Congress and numerous academic,
non-profit and commercial providers are working towards that goal by way of legitimate
legislative and contractual efforts.
Microsoft Corporation has substantial interests in this proceeding.3 It owns Microsoft
Press, a large technical publisher, and is a member of both the Publisher Sub-Class and the
Author Sub-Class defined in Section 1.142 of the proposed settlement agreement with thousands
of copyrighted works covered by its terms. It also operates Bing, an Internet search engine that
provides users with access to all types of digital information and would be harmed by the anticompetitive effects of the proposed settlement. Until May 2008, Microsoft operated a book
digitization project like Google Books but with the clear distinction that Microsoft did not scan
and display any copyrighted books without permission of the copyright owner. As explained last

2

As one commentator explained: “It seems likely that the ‘nondisplay uses’ of Google’s scanned corpus of text will
end up being far more important than anything else in the agreement. Imagine the kinds of things that data mining
all the world’s books might let Google’s engineers build: automated translation, optical character recognition, voice
recognition algorithms. And those are just the things we can think of today. Under the agreement, Google has
unrestricted, royalty-free access to this corpus.” Fred von Lohmann, Google Book Search Settlement: A Reader’s
Guide, Electronic Frontier Foundation Deep Links Blog, Oct. 31, 2008 (emphasis added),
http://www.eff.org/deeplinks/2008/10/google-books-settlement-readers-guide. (Ex. B).
3

Microsoft intends to appear at the Fairness Hearing on October 7, 2009 to present the arguments made in these
Objections.

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year, Microsoft was and remains interested in search technology to improve access to digital
books, an interest that would be substantially harmed by approval of the proposed settlement.4
Finally, as an owner, user and licensee of copyrighted works, including books, Microsoft has a
strong interest in the copyright rules and business arrangements that govern such works.
No one can object to the laudable goal of creating universal and broadly accessible
repositories of digital books. Numerous entities – public (including the U.S. Copyright Office
and Library of Congress), non-profit (including the Internet Archive), educational (including
leading universities) and commercial (including Google, Amazon, Yahoo and Microsoft) – have
invested countless time and hundreds of millions of dollars in such efforts. Breakthroughs in
digital technology and progress in copyright reform before Congress – efforts that Microsoft
actively supports – have brought achievement of that goal closer than ever. These competitive
and transparent efforts affirm the benefits of an open market, and the Constitutionally mandated
legislative process ensures that the diverse interests of the many stakeholders are considered and
balanced, accommodating copyright owners, online services, libraries and the public.
The proposed settlement, on the other hand, pursues an illegitimate approach. Following
closed-door negotiations that excluded millions of copyright owners and the very public that
copyright law serves,5 Google and the plaintiffs seek to arrogate public policymaking to
themselves, bypass Congress and the free market, and force a sweeping “joint venture” – built on
copyrights owned by a largely absent class – via this Court’s order. The proposed settlement
would usurp the role that Article I, Section 8 of the Constitution vests in Congress alone to alter
4

See generally Microsoft, Book Search Winding Down, Bing Search Blog, May 23, 2008,
http://www.bing.com/community/blogs/search/archive/2008/05/23/book-search-winding-down.aspx. (Ex. C).
5

See Mazer v. Stein, 347 U.S. 201, 219 (1954) (“The economic philosophy behind the clause empowering Congress
to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best
way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’”).

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the copyright laws in the face of new technologies, a role that Congress actively pursues in
legislation to make orphan works more widely available, to enact copyright exceptions for
libraries to further their mission, and to meet other changing needs.6
Four basic facts about the proposed settlement highlight problems that render it
inappropriate to foist on millions who had no role in its negotiation yet would be bound by its
terms:
First, the plaintiffs no longer seek redress only for past or continuing infringement – the
proper bounds of a copyright lawsuit. Rather, the settling parties now seek this Court’s approval
of a “joint venture” that would authorize new future infringements and expropriate and impair
the exclusive rights of millions of absent class members for the life of their copyrights.
Second, the proposed settlement seeks to divvy up rights that would never be the subject
of contested litigation. Unlike the infringement claims and fair use defense for displaying brief
excerpts alleged in the pleadings, the wholesale uses of entire books that the proposed settlement
would authorize are unquestionably infringing, as Google acknowledges.7 In other words, the
class representatives bargained away millions of absent class members’ incontestable rights to
prevent the reproduction, distribution, public display, public performance and other uses of their
copyrighted books – rights that are not remotely in dispute in this case.
Third, each of the five Publisher Sub-Class representatives that negotiated the proposed
settlement already has a commercial partnership with Google and its own side deal that contains
terms that have not been disclosed to class members. These separate agreements are likely to be
6

See, e.g., Shawn Bentley Orphan Works Act of 2008, S. 2913, 110th Cong. (2008) (passed by Senate on Sept. 26,
2008).
7

See Andrew R. Albanese, Deal or No Deal: What if the Google Settlement Fails?, Publishers Weekly, May 25,
2009, available at http://www.publishersweekly.com/article/CA6660295.html (“Even if Google had prevailed with
its fair use claim, [Google Engineer Dan] Clancy explains, that ruling would only have facilitated its book scanning.
Its display still would have been limited to brief ‘snippets.’”) (emphasis in original). (Ex. D).

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different and more advantageous than the proposed settlement negotiated for the absent class
members. Unlike the class representatives, however, the millions of class members would
become participants in Google Books by means of conscription, not volition.
Fourth, the Publisher Sub-Class representatives that negotiated the proposed settlement
are widely expected to exclude their own books from its terms. The class representatives intend
to walk away from the deal that they seek to impose on millions of absent copyright owners.
These facts and many others cited in objections filed with the Court demonstrate that the
sweeping scope of the proposed settlement is improper and that the parties that negotiated it do
not represent the diverse interests of the massive class.8
The settling parties seek to misuse Rule 23 to create their “joint venture” via an
unprecedented “compulsory license for the benefit of one company,” as U.S. Register of
Copyrights Marybeth Peters calls it.9 This would have profound anticompetitive effects.10
Potential customers of the proposed commercial venture, including libraries,11 universities12 and
8

As Publishers Weekly concluded: “[O]ur take is this: there is simply too much confusion and too little support for
anyone to feel comfortable. … [F]or all the good and bad scenarios raised by the deal, was it ever reasonable to
think that such a revolutionary, unprecedented pact, negotiated in secret over three years by people with loose claims
of representation, concerning a wide range of stakeholders, both foreign and domestic, involving murky issues of
copyright and the rapidly unfolding digital future, could be pushed through as a class action settlement within a
period of months, in the teeth of a historic media industry transition?” Andrew R. Albanese, Unsettled: The PW
Survey on the Google Book Settlement, Publishers Weekly, Aug. 24, 2009, available at
http://www.publishersweekly.com/article/CA6685412.html. (Ex. E).
9

Miguel Helft, It’s Not Just Microsoft Balking at Google’s Book Plans, New York Times BITS Blog, Apr. 4, 2009,
http://bits.blogs.nytimes.com/2009/04/04/its-not-just-microsoft-thats-balking-at-googles-book-plans/. (Ex. F)
10

The U.S. Department of Justice has informed the Court of a pending antitrust investigation of the proposed
settlement. See Order dated July 2, 2009 (Doc. No. 120). In light of that pending investigation, this brief does not
address the legality of the proposed settlement under federal antitrust law, including its implications for Google’s
already dominant position in search advertising and potential monopoly in the markets for digitized books and
library subscription services.

11

See, e.g., Library Association Comments (Doc. No. 100) at 6 (“there is no foreseeable threat to the control Google
and the Registry have over this essential research facility”); Urban Libraries Council Comments (Doc. No. 158) at 4
(“The practical effect of the proposed settlement will be a monopolistic situation.”); Robert Darnton, Google & the
Future of Books, The New York Review of Books, v. 56, n.2, Feb. 12, 2009, available at
http://www.nybooks.com/articles/22281 (“Google will enjoy what can only be called a monopoly – a monopoly of a
new kind, not of railroads or steel but of access to information.”). (Ex. G).

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consumer groups,13 criticize it for creating a concentrated market power, as do leading academics
in the fields of intellectual property and competition.14 Even the parties that negotiated the
proposed settlement acknowledge that it would forestall competition:
Richard Sarnoff, chairman of the Association of American Publishers, said that the
structure of the registry will be “tough to replicate for [Google’s] competitors.”15
Michael J. Boni, the lead lawyer representing the Authors Guild, conceded that “Google
will always have the advantage of having access to 100 percent of the orphan works.”16
Google and its chosen partners would receive immunity from the purported class for massive
copyright infringement that no other entity could obtain.
Facilitating the digitization of books is a worthy goal, but the profound interests
implicated here can only be resolved by Congress, not this Court.
ARGUMENT
I.

THE PROPOSED SETTLEMENT USURPS CONGRESS’S
EXCLUSIVE CONSTITUTIONAL ROLE TO DEFINE AND ALTER
THE RIGHTS AND REMEDIES OF COPYRIGHT OWNERS
The proposed settlement goes well beyond the legitimate role of a copyright lawsuit –

….Continued
See, e.g., Letter to J. Michael McMahon from Mary Croughan, et al. (University of California Faculty) of Aug.
13, 2009 (Doc. No. 134) at 3 (“there are at least three serious impediments to meaningful non-exclusivity of that
license”).

12

13

See, e.g., Jef Pearlman, Public Knowledge and the Google Book Search Settlement, Public Knowledge Blog, May
1, 2009, http://www.publicknowledge.org/node/2129 (Ex. H); Wendy Davis, Consumers Not Considered In Google
Book Search Settlement, Consumer Watchdog, Apr. 7, 2009,
http://www.consumerwatchdog.org/corporateering/articles/?storyId=26151. (Ex. I).

14

See, e.g., Pamela Samuelson, Legally Speaking: The Dead Souls of the Google Booksearch Settlement, O’Reilly
Radar, Apr. 17, 2009, http://radar.oreilly.com/2009/04/legally-speaking-the-dead-soul.html (“The proposed
settlement agreement would give Google a monopoly on the largest digital library of books in the world.”) (Ex. J);
Elise Ackerman, Google’s Book Club, San Jose Mercury News, May 3, 2009 (quoting Randal C. Picker) (“Google
will walk away from the settlement agreement with a huge competitive advantage”). (Ex. K).

15

Timothy B. Lee, Publisher speculates about Amazon/Google e-book “duopoly,” Ars Technica, Feb. 23, 2009,
available at http://arstechnica.com/tech-policy/news/2009/02/publisher-speculates-about-amazongoogle-e-bookduopoly.ars. (Ex. L).
16

Miguel Helft, Google’s Plan for Out-of-Print Books Is Challenged, New York Times, Apr. 4, 2009, available at
http://www.nytimes.com/2009/04/04/technology/internet/04books.html?pagewanted=1&_r=2. (Ex. M).

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resolving claims for infringement – and imposes a slew of provisions that would restructure the
rights and remedies of absent copyright owners throughout the world. The proposed settlement
would improperly: (1) require copyright owners to comply with formalities, including
registration and notice, to preserve and enforce their copyrights against Google; (2) permit
clearly infringing reproduction, distribution and other uses of copyrighted works without the
owner’s affirmative consent; (3) force owners to allow Google and its partners to make farreaching and lucrative “non-display” uses of copyrighted books; (4) impose a private arbitration
system to resolve various copyright disputes; and (5) grant broad immunities not only to Google
but to libraries, contractors and others not party to this litigation.
A class action cannot restructure copyright rights, remedies, immunities and defenses as
the proposed settlement seeks to do. Such changes can only come from Congress, which alone
has the “constitutional authority and institutional capability” to determine the rights and remedies
of copyright. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984).
Accordingly, the Court should reject the proposed settlement and instruct the parties to litigate or
settle the claims actually raised in the complaints. A broader resolution must be left to Congress,
where it can be publicly vetted – and, if appropriate, enacted – with the participation of all
impacted stakeholders. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999) (reversing class
certification and settlement in “litigation [that] defies customary judicial administration and calls
for national legislation”) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 598 (1997)).
A. The Constitution Vests Authority to Restructure Copyrights
Exclusively in Congress, Not the Courts
The Constitution empowers Congress to “promote the progress of science …, by securing
for limited times to authors … the exclusive right to their respective writings ….” U.S. Const.,
art. I, § 8. “[I]t is generally for Congress, not the courts, to decide how best to pursue the
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Copyright Clause’s objectives.” Eldred v. Ashcroft, 537 U.S. 186, 212 (2003). “[I]t is Congress
that has been assigned the task of defining the scope of the limited monopoly that should be
granted to authors … to give the public appropriate access to their work product.” Id. at 205
(quoting Sony Corp., 464 U.S. at 429). This role is particularly important in the face of new
technology, as here. “Congress has the constitutional authority and the institutional ability to
accommodate fully the varied permutations of competing interests that are inevitably implicated
by such new technology.” Sony Corp., 464 U.S. at 430-31 (footnotes and citations omitted).
Congress has worked hard on legislation to revise copyright law to meet the challenges of
the digital age. Microsoft and scores of others (including the settling parties) are active
participants in those deliberations. Many aspects of the proposed settlement, including its
treatment of orphan and non-U.S. works and of libraries, run afoul of legislative efforts. While
some of these provisions may have benefits as a policy matter, their inclusion in the proposed
settlement amounts to an end run around Congress to further the parties’ private “joint venture.”
B. Congress Has Resolved Similar Matters Many Times,
Including Those That First Arose in Class Action Litigation
Congress has a long record of amending copyright law to respond to advances in
technology, including enacting industry-specific mechanisms that recognize and reconstruct the
rights of copyright owners. See, e.g., 17 U.S.C. § 111 (compulsory license for retransmission of
television signals by cable systems); § 112(e) (compulsory license for ephemeral reproduction of
sound recordings by webcasters and other digital music services); § 114 (compulsory license for
public performance of sound recordings by certain digital music services); § 115 (compulsory
license for making phonorecords of musical compositions); § 116 (compulsory license for use of
music by jukeboxes); § 118 (compulsory license for use of works by public television stations);
§§ 119, 122 (compulsory license for retransmission of television signals by satellite carriers);
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§ 1001 et seq. (resolving disputes over reproduction of copyrighted music by digital audio
recording devices). Congress can do so here as well.
In Cahn v. Sony Corp., No. 90 Civ. 4537 (S.D.N.Y. complaint filed July 9, 1990), music
publishers filed a class action asserting copyright infringement claims against the manufacturer
of digital audio tape recorders, which consumers could use to make digital copies of copyrighted
musical works. At the urging of the litigating parties, Congress effectively resolved the case by
enacting the Audio Home Recording Act of 1992 (“AHRA”).17 In contrast, the proposed
settlement improperly seizes the legislative function of Congress by attempting to mimic the
AHRA and compulsory license schemes. It provides immunity from copyright liability for the
users of the copyrighted works;18 requires payment from some of those users to the copyright
owners;19 creates a mechanism for collecting payments, making claims on those payments and
distributing payments to copyright owners;20 and includes procedures to resolve disputes about
payments, claims and related matters.21
But these Congressional solutions differ in three fundamental ways from the
“compulsory license” the proposed settlement would impose. Unlike the proposed settlement,
legislated changes to copyright owners’ rights and remedies: (1) result from an open and
transparent process; (2) balance and accommodate the legitimate concerns of all stakeholders;
17

17 U.S.C. § 1001 et seq. Counsel for the Publisher Sub-Class represented the defendants in the Cahn litigation
and were instrumental in transforming that class action litigation into Congressional legislation.

18

Compare Settlement Agreement (“SA”) Art. X (“Releases”) with 17 U.S.C. § 1008 (“Prohibition on Certain
Infringement Actions”).

19

Compare SA Art. IV (“Economic Terms for Google’s Use of Books”) with 17 U.S.C. § 1004 (“Royalty
payments”).

20

Compare SA Art. VI (“Establishment and Charter of Registry”) with 17 U.S.C. §§ 1005-07 (“Deposit of royalty
payments and deduction of expenses”; “Entitlement to royalty payments”; & “Procedures for distributing royalty
payments”).

21

Compare SA Art. IX (“Dispute Resolution”) with 17 U.S.C. §§ 1009-10 (“Civil remedies” & “Determination of
certain disputes”).

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and (3) are available to all similarly situated entities, not just to a “joint venture” involving one
company and its chosen partners. Congress has the “constitutional authority and institutional
capability” to resolve the issues that the proposed settlement raises. See Sony Corp., 464 U.S. at
431. Congress has done it before and can do it again.
C. The Proposed Settlement Would Interfere with
Congress’s Resolution of Important Copyright Issues
The proposed settlement would alter and abridge class members’ substantive rights,
including those to which Congress has devoted considerable attention in recent years. Some of
the proposed settlement’s changes may be beneficial reforms that, if enacted by Congress, would
improve the copyright system for the digital age. But they may only be enacted by Congress, not
imposed through the misuse of a class action lawsuit.
Orphan Works. Congress and the Copyright Office have been studying the orphan works
issue intensively for the past four years and received input from hundreds of interested parties,
including Microsoft.22 In contrast to the parties’ closed-door discussions, the legislative process
is extensive, transparent and public,23 as the Copyright Office explained in its 2006 Report on
Orphan Works:
The response from the public to this study was extraordinary. We received over 850
written comments, most of which were filed by individuals who have concerns about the
use of orphan works. As you know, the roundtable discussions we held in Washington,

22

See Letter from Thomas C. Rubin, Microsoft, to U.S. Copyright Office of Mar. 25, 2005, available at
http://www.copyright.gov/orphan/comments/OW0695-Microsoft.pdf; Orphan Works: Proposals for a Legislative
Solution: Hearing Before the Senate Comm. on the Judiciary, 109th Cong. (Apr. 6, 2006) (Testimony of Thomas
Rubin), available at http://judiciary.senate.gov/hearings/testimony.cfm?id=1847&wit_id=5223.
23

See, e.g., Oversight Hearing on the “Report on Orphan Works”: Hearing Before the House Subcomm. on Courts,
the Internet, and Intellectual Property, 109th Cong. (Mar. 8, 2006); Orphan Works: Proposals for a Legislative
Solution: Hearing Before the Senate Comm. on the Judiciary, 109th Cong. (Apr. 6, 2006); H.R. 5439, 109th Cong.
(2006); Hearing on Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users:
Hearing Before the House Subcomm. on Courts, the Internet, and Intellectual Property, 110th Cong. (Mar. 13,
2008); H.R. 5889, 110th Cong. (2008); S. 2913, 110th Cong. (2008).

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