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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D.C. and California were well-attended, and the participants engaged in thoughtful and
productive discussion of the many complex issues involved in this matter….24
The difficulty of obtaining rights to orphan works as part of a mass digitization project
was the subject of comments filed by interested parties, including the settling parties.25 Congress
and the Copyright Office took great pains to consider how an orphan works solution would affect
the owners of those works and the copyright system itself, both in the United States and
internationally.26
As many note, the proposed settlement would give Google an exclusive license to the
orphan works of absent class members because the Registry could not grant to others the same
rights without the right holder’s permission – which no orphan owner will be available to grant.27
Moreover, under the terms Google and plaintiffs drafted, Google would be able to use those
orphan works on terms that Congress and the Copyright Office rejected. In 2008, the Senate
passed legislation recommended by the Copyright Office that would require a “diligent search”
for an orphan work’s owner before using the work, in part to ensure that the legislation meets

24

Letter from Marybeth Peters, Register of Copyrights, to Senators Orrin G. Hatch and Patrick Leahy of Jan. 23,
2006, included in U.S. Copyright Office, Report on Orphan Works (Jan. 2006) (“Report on Orphan Works”),
available at http://www.copyright.gov/orphan/orphan-report-full.pdf.

25

See, e.g., Letter from Allan Adler, Association of American Publishers, et al., to U.S. Copyright Office of Mar.
24, 2005 (“AAP Initial Comment”), available at http://www.copyright.gov/orphan/comments/OW0605-AAPAAUP-SIIA.pdf; Letter from David Drummond, Google, to U.S. Copyright Office of Mar. 25, 2005 (“Google Initial
Comment”), available at http://www.copyright.gov/orphan/comments/OW0681-Google.pdf; Letter from Allan
Adler, Association of American Publishers, et al., to U.S. Copyright Office of May 6, 2005 (“AAP Reply
Comment”), available at http://www.copyright.gov/orphan/comments/reply/OWR0085-AAP-AAUP-SIIA.pdf;
Letter from Paul Aiken, The Authors Guild, to U.S. Copyright Office of May 9, 2005 (“Authors Guild Reply
Comment”), available at http://www.copyright.gov/orphan/comments/reply/OWR0135-AuthorsGuild.pdf.
26

See Report on Orphan Works at 59-68.

27

See SA § 6.2(b)(iii), and Attach. I (Settlement Notice) § 8.B; Samuelson, supra, n.14; Randal C. Picker, The
Google Book Search Settlement: A New Orphan-Works Monopoly?, Univ. of Chicago, Olin Law and Economics
Program, Research Paper Series (Apr. 16, 2009), available at
http://www.mediainstitute.org/IntellectualProperty/IPI_ViewPoints_061709.html (Ex. N); James Grimmelmann,
Google and the Zombie Army of Orphans, Feb. 27, 2009, available at
http://james.grimmelmann.net/essays/ZombieArmy. (Ex. O).

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international treaty requirements.28 The proposed settlement would place no diligent search
burden on Google, replacing it with a requirement that copyright owners proactively register
their works with a registry – a concept that plaintiffs opposed in the legislative proceedings, the
Copyright Office rejected, and the Senate omitted from the bill it passed last year.29
In addition, the proposed settlement would establish an “escrow” system under which
funds are collected from customers to be disbursed to orphan work owners if and when they
surface. The Copyright Office also considered and rejected the use of an escrow, and nearly all
interested parties, including Google, the Association of American Publishers (“AAP”) and the
Authors Guild, opposed it. 30 The proposed settlement’s escrow system would be even worse
than the proposal the Copyright Office and the Senate rejected. It would create conflicts of
interest among the class by imposing an escrow and then re-allocating unclaimed funds to other
copyright owners and the Book Rights Registry, thereby creating an economic disincentive to
find orphan work owners.31

28

See Report on Orphan Works at 121.

29

See Report on Orphan Works at 104-05. See also AAP Reply Comment, supra n.25, at 3 (“a legislative solution
to encourage the use of ‘orphan works’ should place the affirmative responsibility for due diligence ‘squarely on the
user’ by requiring the user to conduct a reasonable efforts search to obtain permission from the copyright owner
before using the ‘orphan work.’”) (emphasis added); Authors Guild Reply Comment, supra n.25, at 5-7 (“Above all,
the law must not take away the rights of owners who could be found by a truly diligent search. An owner who
cannot be readily located should not be deemed guilty of ‘neglecting’ or abandoning his or her work. … These
[registration-based] proposals are unjustifiably overbroad, and they would unfairly affect individual owners much
more than corporations and institutions…”) (emphasis added); cf. S. 2913, 110th Cong. § 2 (2008) (reasonably
diligent search approach).
30
See Report on Orphan Works at 113-14; see also Transcript of Orphan Works Roundtable at 165 (July 26, 2005),
available at http://www.copyright.gov/orphan/transcript/0726LOC.PDF; AAP Initial Comment, supra n.25, at 6;
Authors Guild Reply Comment, supra n.25, at 7.
31

These are just two of the ways in which the proposed settlement would bypass the democratic process and
Congress’s exclusive Constitutional role. The settling plaintiffs changed positions on these central issues – in which
they abandoned fundamental positions that other class members still hold – also calling into question their
qualifications to serve as class representatives.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----------------------------------------------------x
The Authors Guild, Inc., et al.,

Plaintiffs,

vs.

Case No. 05 CV 8l36-DC

Google Inc.,

Defendant.

----------------------------------------------------x
MEMORANDUM OF AMICUS CURIAE OPEN BOOK ALLIANCE
IN OPPOSITION TO THE PROPOSED SETTLEMENT
BETWEEN THE AUTHORS GUILD, INC., ASSOCIATION OF
AMERICAN PUBLISHERS, INC, ET AL., AND GOOGLE INC.

Gary L. Reback
(CA State Bar No. 100118)
(Pro Hac Vice Application Pending)
Carr & Ferrell LLP
2200 Geng Road
Palo Alto, CA 94303

Counsel for Amicus Curiae Open Book Alliance

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Of course, these algorithms are also designed to maximize Google's revenue. For a
variety of reasons, including the desire to prevent undesirable manipulation of the results, neither
Google nor its competitors reveal the criteria for prioritization in the search result or ad listings.
Under the terms of the Google "auction," an advertiser might be willing to pay more, for
example, but paying more does not necessarily secure top placement. The opaque, confusing,
and complex nature of selection criteria leaves web sites and advertisers vulnerable to discipline,
and wary of the threat of discipline. A web-based business could be severely damaged by
Google's manipulation of search results and ad listings, using means not even visible to the
outside world.
In the search advertising and search syndication markets, then, only the presence of

strong competition prevents supplier abuse. Even a dominant search company would have to
pause before manipulating search or advertising results if the victim of the manipulation had
realistic alternatives. Google's market dominance has created great concern in Silicon Valley,
and not just among antitrust enforcers and Google competitors. Some commentators have even
called for government regulation of search criteria to prevent market abuse by Google. 2o
Search advertising and search syndication are scale markets. A supplier improves its
search product by crawling and indexing collections of materials/postings to determine word
associations and other relationships. The greater the amount and the higher the quality of
material crawled and the greater the {lUmber of queries run on a platform, the better the
algorithms powering search engine become. Similarly, search advertising becomes more
lucrative as individual preferences are tracked more frequently. A comprehensive book database
holds great opportunity for Google. By placing advertising next to digital book pages (especially

20 The Time Has Come To Regulate Search Engine Marketing And SE~, TECHCRUNCH (July 13, 2009), at
http://www.techcrunch.coml2009/07113/the-time-has-come-to-regulate-search-engine-marketing-and-seo/.

12

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
)
)
THE AUTHOR’S GUILD, INC., ASSOCIATION )
)
OF AMERICAN PUBLISHERS, INC., et al.,
)
)
Plaintiffs,
)
v.
)
)
GOOGLE, INC.
)
)
)
Defendant.
)
)

ECF Case
Civil Action No.:
05-CV-8136 (DC)

OBJECTION OF YAHOO! INC. TO FINAL APPROVAL
OF THE PROPOSED CLASS ACTION SETTLEMENT

Michael S. Elkin
Thomas P. Lane
Robert C. Turner
WINSTON & STRAWN LLP
200 Park Avenue
New York, New York 10166
Telephone: [phone]
Facsimile: [phone]
Attorneys for Class Member
Yahoo! Inc.

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of orphan work-related litigation alone chills the potential for competition. While the risk arising
out of the use of orphan works can be minimized by simply excluding orphan works from an
offering, a competitor who cannot harness the vast base of knowledge contained in orphan works
is doomed to fail, particularly when forced with a competitor in Google which can use the
orphan works.
C.

Google Gains an Unfair Advantage in the Search Marketplace

This exclusive market has yet one more anti-competitive effect: it secures for Google
access to a database capable of vastly improving Google’s central product, Google Search. With
sole access to this data, Google can better refine its search algorithm and gain a tremendous
advantage against other search providers. This result is unreasonable and unfair to class
members, competitors, and consumers alike. As a consequence of Google’s singular position in
the emerging book search marketplace and its control of orphan works, as discussed above,
Google will gain a tremendous advantage in its core business area: Google Search. Google, and
other search providers, have developed proprietary algorithms and search models that are
constantly evolving in an effort to provide higher quality search results in the minimum amount
of time. Search engineers generally agree, however, that the more data available, the better the
resulting algorithm and the better the search engine. Indeed, search providers have long used the
wealth of information available on the Internet to help refine their proprietary search algorithms.
Google’s own Director of Research, Peter Norvig, has stated that “if you go from a 1 million
word training set to a 10 million word training set . . . the very worst algorithm at 10 million
words is better than the very best algorithm at 1 million words. So rather than arguing about
which [algorithm] is better or trying to discover a better one, why not just go out and gather more
data.” Peter Norvig, Theorizing from Data: Avoiding the Capital Mistake, May 31, 2007,

25

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available at http://www.youtube.com/watch?v=nU8DcBF-qo4.21 This is exactly what Google
has done, but it has done so in a way that unfairly excludes all other market participants from this
pool of data. In obtaining what amounts to a compulsory license to orphan works that no would
be competitor could ever likely achieve, Google simultaneously enhances its primary market for
Internet search.
CONCLUSION
For the foregoing reasons, Yahoo! respectfully requests that the District Court reject the
Proposed Settlement.

Dated: New York, New York
September 8, 2009
WINSTON & STRAWN LLP
By:

/s/ Thomas P. Lane

Michael S. Elkin (ME 2300)
Thomas P. Lane (TL 8983)
Robert C. Turner (RT 7980)
200 Park Avenue
New York, New York 10166
[phone]
Attorneys for Class Member
Yahoo! Inc.

21

Other commentators have also made the argument for more data over better algorithms. See
Anand Rajaraman, More Data Usually Beats Better Algorithms, Mar. 24, 2008, available at
http://anand.typepad.com/datawocky/2008/03/more-data-usual.html.

26

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------x
The Authors Guild, Inc., Association of American
:
Publishers, Inc., et al.,
:
:
Plaintiffs,
:
:
v.
:
:
Google Inc.,
:
:
Defendant.
:
------------------------------------------------------------------------x

Case No. 05 CV 8136-DC
AMENDED SETTLEMENT
AGREEMENT

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1.155 “Supplemental Notice” has the meaning set forth in Article XII (Class
Notice Program).
1.156 “Supplemental Opt-Out Deadline” means the deadline fixed by the Court
to opt out of the Amended Settlement Agreement pursuant to Rule 23 of the Federal
Rules of Civil Procedure.
1.157 “Third-Party Required Library Services Provider” has the meaning set
forth in Section 7.2(e)(ii) (Third-Party Required Library Services Provider).
1.158 “Third-Party Unauthorized Access” means any access (other than
Prohibited Access) by any third party to any Digital Copy of a Book that is not authorized
by this Amended Settlement Agreement, the applicable Library-Registry Agreement, or
the applicable Host Site-Registry Agreement, and is not otherwise authorized by the
Rightsholder.
1.159 “Unauthorized Access” means any display or reproduction in the United
States by Google of any Digital Copy of a Book or Insert that is not authorized by this
Amended Settlement Agreement or the Rightsholder.
1.160 “Unclaimed Works Fiduciary” has the meaning set forth in Section 6.2(b)
(Organizational Structure).
1.161 “Unclaimed Funds” has the meaning set forth in Section 6.3(a)(Unclaimed
Funds).
1.162 “United States” or “U.S.” means the states and territories, the District of
Columbia, and the possessions of the United States of America.
ARTICLE II — SETTLEMENT BENEFITS – OVERVIEW AND
AUTHORIZATIONS
2.1

Benefits to the Amended Settlement Class – Overview.
(a)
Google Book Search. Google is authorized to, in
the United States, sell subscriptions to the Institutional Subscription

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Database, sell individual Books, place advertisements on Online
Book Pages, and make other commercial uses of Books, all as further
described in this Amended Settlement Agreement. Google shall pay
to the Registry, for the benefit of the Rightsholders, seventy percent
(70%) of all revenues earned by Google through uses of Books in
Google Products and Services in the United States authorized under
this Amended Settlement Agreement, less ten percent (10%), for
Google’s operating costs, deducted from such revenues prior to such
calculation (i.e., sixty-three percent (63%) of all revenues earned by
Google through uses of Books in Google Products and Services in the
United States authorized under this Amended Settlement Agreement).
The Registry will distribute the revenues to Rightsholders pursuant to
the provisions of the Plan of Allocation.
(b)
Cash Payment. Google shall pay a minimum of
forty-five million United States dollars (U.S. $45 million) into the
Settlement Fund to pay Amended Settlement Class members whose
Books and Inserts have been Digitized on or before May 5, 2009.
Such forty-five million United States dollars (U.S. $45 million) will
be distributed from the Settlement Fund in the form of Cash
Payments of at least sixty United States dollars (U.S. $60) per
Principal Work; fifteen United States dollars (U.S. $15) per Entire
Insert; and five United States dollars (U.S. $5) per Partial Insert in
accordance with the Plan of Allocation. To the extent that funds
greater than forty-five million United States dollars (U.S. $45
million) are required in order to pay every such Amended Settlement
Class member his, her or its Cash Payment, Google shall make an
additional payment to enable such Cash Payments to be made to the
Rightsholders from the Settlement Fund. To the extent funds remain
from the forty-five million United States dollars (U.S. $45 million)
after all Cash Payments are made, such excess will be distributed
pursuant to the Plan of Allocation.
(c)
Registry/Notice/Claims Administration Funding.
Google is obligated to pay thirty-four and one-half million United
States dollars (U.S. $34.5 million) (of which twelve million United
States dollars (U.S. $12 million) has been paid) to fund the launch
and the initial operations of the Registry and to fund other
Administrative Costs. The Registry will be responsible for locating
and collecting information from Rightsholders, identifying and
coordinating payments to Rightsholders, and otherwise representing

24
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the interests of Rightsholders under this Amended Settlement
Agreement.
(d)
Attorneys’ Fees and Costs. Google shall pay
Plaintiffs’ attorneys’ fees and costs in accordance with Section 5.5
(Attorneys’ Fees).
(e)
Summary Only. This Section 2.1 (Benefits to the
Amended Settlement Class – Overview) is a summary of some of the
provisions of this Amended Settlement Agreement and is subject to
all of the other provisions of this Amended Settlement Agreement.
2.2
Authorization of Google, Fully Participating Libraries and Cooperating
Libraries. In exchange for the benefits conferred in this Amended Settlement Agreement
on Plaintiffs and Rightsholders, Rightsholders, as of the Effective Date, authorize (a)
Google to make Display Uses and Non-Display Uses of their Books and Inserts in GBS
and other Google Products and Services, (b) each Fully Participating Library to use its
Library Digital Copy and (c) each Host Site to make the Research Corpus available, all in
accordance with the terms and conditions of this Amended Settlement Agreement, a
Library-Registry Agreement or a Host Site-Registry Agreement, as applicable. As of the
Effective Date, Rightsholders authorize Google, the Fully Participating Libraries, the
Cooperating Libraries and the Host Sites to engage in the activities, and only the
activities, set forth in this Amended Settlement Agreement, a Library-Registry
Agreement or a Host Site-Registry Agreement, as applicable, and only in accordance
with such terms and conditions as are applicable to those activities; provided that the
remedy for any breach of a term or condition of this Amended Settlement Agreement or a
Library-Registry Agreement shall not be termination of such authorizations except as
provided in Section 3.7(b) (Failure to Provide Contemplated Rightsholder Services).
This Amended Settlement Agreement does not authorize Google, any Participating
Library or any Host Site to make any uses of Books and Inserts other than those uses that
are authorized under this Amended Settlement Agreement. This Amended Settlement
Agreement neither authorizes nor prohibits, nor releases any Claims with respect to, (i)
the use of any work or material that is in the public domain under the Copyright Act in
the United States, (ii) the use of books in hard copy (such term does not include
microform) format other than the creation and use of Digital Copies of Books and Inserts,
or (iii) any Participating Library’s Digitization of Books if the resulting Digitized Books
are neither provided to Google pursuant to this Amended Settlement Agreement nor
included in any LDC, or the use of any such Digitized Books that are neither provided to
Google pursuant to this Amended Settlement Agreement nor included in any LDC.

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2.3
Author-Publisher Procedures. All rights of Books Rightsholders under
this Amended Settlement Agreement are subject to the Author-Publisher Procedures.
2.4
Non-Exclusivity of Authorizations. The authorizations granted to Google
in this Amended Settlement Agreement are non-exclusive only, and nothing in this
Amended Settlement Agreement shall be construed as limiting any Rightsholder’s right
to authorize, through the Registry or otherwise, any Person, including direct competitors
of Google, to use his, her or its Books or Inserts in any way, including ways identical to
those provided for under this Amended Settlement Agreement.
ARTICLE III — GOOGLE BOOK SEARCH – RIGHTS, BENEFITS AND
OBLIGATIONS
3.1

Digitization, Identification and Use of Books.
(a)
Non-Exclusive Digitization Rights. As of the
Effective Date, in the United States (i) Google may, on a nonexclusive basis, Digitize all Books and Inserts obtained by Google
from any source (whether obtained before or after the Effective
Date), (ii) Fully Participating Libraries and Cooperating Libraries
may provide Books and Inserts to Google in hard copy (not including
microform) format to be Digitized (or in a form Digitized by or for
such Fully Participating Library or Cooperating Library), and (iii)
Google and Fully Participating Libraries may use such Books and
Inserts as provided in this Amended Settlement Agreement and the
Library-Registry (Fully Participating) Agreements. The
authorizations to use Books and Inserts provided for by this Amended
Settlement Agreement or a Library-Registry Agreement are not
transfers of copyright ownership to such Books or Inserts, and
nothing in this Amended Settlement Agreement or a Library-Registry
Agreement shall operate to transfer any copyright ownership in
Books or Inserts. The foregoing authorization for Google to Digitize
Books and Inserts includes authorization of Google’s contractors to
Digitize Books and Inserts for Google, including libraries that may
Digitize Books and Inserts, or portions thereof, at Google’s request.
(b)

Identification of Digitized Books and Government

Works.

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(i)
List of Digitized Books and Government Works. Google
has previously provided Plaintiffs, in a form mutually agreed, with a list of
the Books, Public Domain Books with a copyright date after 1922 and
Government Works that Google has Digitized as of January 5, 2009 and the
date each Book, Public Domain Book with a copyright date after 1922 or
Government Work was Digitized by Google, and a separate list of all Books,
Public Domain Books with a copyright date after 1922 and Government
Works that Google reasonably anticipated it would Digitize on or before
May 5, 2009. On November 2, 2009, Google provided Plaintiffs with a final
list of all Books, Public Domain Books with a copyright date after 1922 and
Government Works that Google Digitized on or before May 5, 2009.
(ii)
Books Database. Google has made a searchable online
database available to members of the Amended Settlement Class through the
Internet (1) for the purpose of identifying all Books, Public Domain Books
with a copyright date after 1922 and Government Works that Google has
Digitized or reasonably anticipates that it might Digitize under this Amended
Settlement Agreement, and (2) for purposes of Article V (Other Settlement
Benefits), identifying whether such Books, Public Domain Books with a
copyright date after 1922 or Government Works have been Digitized as of
the Notice Commencement Date or Google reasonably anticipates that it
might Digitize such Books, Public Domain Books or Government Works on
or before May 5, 2009. Such database shall be referred to in this Amended
Settlement Agreement as the “Books Database.” The Books Database
supports queries by author, title, publisher, ISBN, and date of publication.
The inclusion of a work within the Books Database does not, in and of itself,
mean that the work is a Book within the meaning of Section 1.19 (Book).
(iii)
Books. Google will also allow members of the Amended
Settlement Class to submit bibliographic information (e.g., title, author, and
publication date) for Books not in the Books Database.
(iv)

Inserts.

(1)
Submission. The Books Database will allow each
member of the Amended Settlement Class to submit identifying
information regarding his, her or its Inserts, such as the Books, Public
Domain Books with a copyright date after 1922 or Government Works in
which such Inserts were published, the location of such Inserts within
Books, Public Domain Books with a copyright date after 1922 or

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Government Works and any other identifying information about such
Inserts (e.g., whether the Insert is an introduction, a foreword, etc.).
(2)
Insert Identification. For content that may be an Insert,
the Books Database will allow any Person who might be a member of the
Amended Settlement Class to submit a digital copy of his, her or its
content that may be an Insert or to otherwise identify such content that
may be an Insert, and Google will perform searches to identify Books,
Public Domain Books with a copyright date after 1922 or Government
Works, if any, that contain such submitted content. If Google identifies
any Books, Public Domain Books with a copyright date after 1922 or
Government Works that may contain such submitted content, Google will
notify such Person of such Books, Public Domain Books with a copyright
date after 1922 or Government Works in order to enable him, her or it to
determine whether the submitted content is an Insert in such Books, Public
Domain Books with a copyright date after 1922 or Government Works
and the pages on which such content appears. Google shall have no
liability for failure to identify an Insert under this Section 3.1(b)(iv)(2)
(Insert Identification).
3.2

Initial Display and No Display Book Classification.
(a)
General Guidelines. Pursuant to Section 3.2(b).
(Display/No Display Classification), Google and the Registry will
classify all Books in one of two categories, either Display Books, as
described in Section 3.3 (Display Books), or No Display Books, as
described in Section 3.4 (No Display Books).
(b)
Display/No Display Classification. Google will
initially classify a Book as No Display if it is determined to be
Commercially Available as of the Notice Commencement Date, and
Display if it is determined not to be Commercially Available as of the
Notice Commencement Date. A Rightsholder, Google, or the
Registry (pursuant to Section 3.2(e)(i) (Change Requests by
Rightsholders)), may change a Book’s classification as Display or No
Display as set forth in this Article III (Google Book Search – Rights,
Benefits and Obligations).

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(c)
Notification of Display/No Display Classification.
The Books Database will identify whether a Book has been classified
as a Display Book or a No Display Book.
(d)
Commercial Availability, In Print/Out of Print and
Public Domain Determination.
(i)
Basis for Determination. Google shall determine whether
a Book is Commercially Available or not Commercially Available based on
its analysis of multiple third-party databases as well as its analysis of the
Book’s retail availability based on information that is publicly available to it
on the Internet. Google will use third-party databases from a range of United
States, Canadian, United Kingdom, and Australian sources that can be
obtained on fair and commercially reasonable terms. When analyzing the
third-party databases, Google will use the publishing status, product
availability and/or availability codes to determine whether or not the
particular database being used considers that Book to be Commercially
Available. When analyzing information that is publicly available to it on the
Internet, Google will determine retail availability by consulting various
sources to determine whether the Book is Commercially Available. Each of
these sources may contain errors; Google, however, shall use commercially
reasonable efforts to determine whether a Book is Commercially Available
or is not Commercially Available using a methodology reasonably agreed to
by Google and the Registry that is designed to minimize the overall error
rate. All Books for which Google does not have information from the
sources identified above will be determined to be not Commercially
Available. Rightsholders may provide information directly to Google that a
Book is Commercially Available when they submit their Claim Forms,
through the Books Database or, at any time after such submission, to Google
or the Registry. When Google receives such information from Rightsholders
or the Registry or Rightsholders otherwise assert that their Books are
Commercially Available, such Books promptly shall be classified as
Commercially Available. If Google reasonably believes that such
information or assertion is inaccurate, then Google may challenge the
classification pursuant to Article IX (Dispute Resolution).
(1)
In-Copyright Principal Work. If a Book’s Principal
Work is not in the public domain under the Copyright Act in the United
States and that Book is Commercially Available, then any other Book that
has the same Principal Work (such as a previous edition) is also deemed to

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be Commercially Available, whether or not such other Book is at the time
in question also Commercially Available.
(2)
Public Domain Principal Work. If a Book’s Principal
Work is in the public domain under the Copyright Act in the United
States, and that Book is Commercially Available and also contains an
Insert (i.e., content that qualifies as an Insert and is not in the public
domain under the Copyright Act in the United States), then any earlier
edition of such Book that contains such Insert is also deemed to be
Commercially Available.
(ii)
In-Print/Out-of-Print. Google’s initial determination of
whether or not a Book is Commercially Available will be used to initially
classify Books as “In-Print” or “Out-Of-Print,” as such classifications are
defined in the Author-Publisher Procedures, and only for purposes of the
Settlement. Google shall provide the Registry with the determination as to
whether a Book is Commercially Available as of the Notice Commencement
Date and thereafter from time to time. Classification of Books as In-Print or
Out-Of-Print pursuant to the terms of the Author-Publisher Procedures shall
be the responsibility of the Registry. If the Registry re-classifies a Book as
Out-Of-Print, the Registry will direct Google to change the classification of
the Book to a Display Book, which Google shall do within thirty (30) days
unless the Rightsholder of the Book, subject to Section 3.2(e)(i) (Change
Requests by Rightsholders), expressly requests that the Book be treated as a
No Display Book. If the Registry re-classifies a Book as In-Print, the
Registry will direct Google to change the classification of the Book to a No
Display Book only upon the express request of the Rightsholder of the Book,
subject to Section 3.2(e)(i) (Change Requests by Rightsholders).
(iii)
Mistakes. If a Book was mistakenly determined by
Google not to be Commercially Available, then the Rightsholder of the Book
may notify Google, or may authorize the Registry to notify Google, of such
mistaken determination. To verify the claim, the Registry will provide, upon
Google’s reasonable request, information supporting any assertion by the
Rightsholder of the Book that the Book is Commercially Available. If the
Rightsholder asserts that the Book is Commercially Available, then, as
Google’s sole obligation and the Rightsholder’s sole remedy (subject to
Section 3.2(d)(iv) (Disputes)), Google promptly shall correct the
determination as to whether the Book is Commercially Available.

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(iv)
Disputes. The Registry and Google shall work together to
resolve any disputes regarding the determination of whether a Book is
Commercially Available. If they are unable to do so, then the dispute shall
be resolved pursuant to Article IX (Dispute Resolution). If the Arbitrator, in
such dispute, finds in favor of the Rightsholder, then Google shall pay the
Rightsholder’s reasonable attorneys’ fees and costs, including arbitration
costs.
(v)

Safe Harbor Public Domain Determination.

(1)
Safe Harbor Process. Attachment E (Public Domain)
sets forth the process by which Google may determine whether a book is a
Public Domain Book for the sole purpose of determining whether
Section 3.2(d)(v)(3) (Safe Harbor) is applicable. Attachment E (Public
Domain) may be amended by Google and the Registry from time to time if
Google develops and provides to the Registry additional or different
processes for determining whether a book is a Public Domain Book. If the
Registry reasonably believes that such processes do not identify Public
Domain Books accurately, then the Registry shall notify Google thereof.
Google shall respond to such notice within thirty (30) days, either by
modifying such process or by explaining how such process can reasonably
identify Public Domain Books accurately. Any disputes as to whether the
process can reasonably identify Public Domain Books for purposes of
determining the applicability of Section 3.2(d)(v)(3) (Safe Harbor) shall be
resolved pursuant to Article IX (Dispute Resolution).
(2)
List. Google shall identify to the Registry books that it
has determined to be Public Domain Books pursuant to the process set
forth in Attachment E (Public Domain) and for which Google wants the
safe harbor described in Section 3.2(d)(v)(3) (Safe Harbor). For each such
book, Google shall provide the supporting reasons and information that
Attachment E (Public Domain) requires. At any time, the Registry or a
Rightsholder may notify Google that it or a Rightsholder believes that any
such book is not a Public Domain Book (with supporting reasons and
information) and, upon receipt of such notice, Google shall promptly
review the supporting reasons and information and shall either (a) reclassify the Book as in copyright or (b) notify the Registry and any
notifying Rightsholder that Google continues to believe the book is a
Public Domain Book. Any disputes with respect to whether a book is a
Public Domain Book shall be resolved pursuant to Article IX (Dispute
Resolution); in any such dispute, the burdens of proof as to whether the

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book is in copyright or in the public domain under the Copyright Act in
the United States (and the allocation and shifting of such burdens) shall be
as if the action were one for copyright infringement brought under the
Copyright Act.
(3)
Safe Harbor. If, with respect to a book, Google has
followed the process set forth in Attachment E (Public Domain) and
neither the Registry nor a Rightsholder has notified Google pursuant to
Section 3.2(d)(v)(2) (List), then Google may treat such book as if it is in
the public domain under the Copyright Act in the United States for the
purposes of this Amended Settlement Agreement, and Google will have
no liability or obligation (a) for any use of such book to the extent that
such use would be authorized under this Amended Settlement Agreement
if such book were a Display Book or (b) for providing downloadable
versions of such book. If the Registry or a Rightsholder has notified
Google pursuant to Section 3.2(d)(v)(2) (List), Google otherwise obtains
actual knowledge that a Book is not in the public domain under the
Copyright Act in the United States, or a Book is determined to be in
copyright pursuant to Article IX (Dispute Resolution), then, commencing
five (5) Business Days from the date of such notice, knowledge or
determination, the foregoing limitation on Google’s liability or obligation
will not apply.
(e)

Change of Display/No Display Classification.

(i)
Change Requests by Rightsholders. For all Books, the
Registered Rightsholder of the Book or, for unclaimed Books, the Unclaimed
Works Fiduciary (subject to the last sentence of this Section 3.2(e)(i)
(Change Requests by Rightsholders)) may direct Google or the Registry to
change the classification of a Book or group of Books to a Display Book or
Display Books or to a No Display Book or No Display Books or to include
in, or, pursuant to Section 3.5 (Right to Remove or Exclude), exclude any or
all of his, her or its Books or group of Books from, one or more of the
Display Uses. In the event the Rightsholder directs that any of his, her or its
Books be included in one or more of the Display Uses, (1) the provisions of
Section 3.5(b)(iii) (Coupling Requirement) will apply to such Books, (2)
such Books will be considered Display Books, and (3) such Display Uses
will be deemed authorized. Google will implement a direction to change the
classification of a Book within thirty (30) days after Google receives notice
of such direction. The Registry shall be able to direct Google to change the
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Books. A direction to change the classification of a Book to a No Display
Book or a group of Books to No Display Books, however, must be initiated
by the Rightsholder of the Book or Books.
(ii)
Change Requests by Google. At any time after one (1)
year from the Final Approval Date, Google shall have the right to request
that the classification of a Book be changed to a Display Book if Google
believes that the Book is not Commercially Available at that time, or if
Google believes that a mistake was made in initially determining the Book to
be Commercially Available. Upon receipt of such a request from Google,
the Registry shall have one hundred and twenty (120) days to attempt to
contact the Rightsholder of the Book to inform such Rightsholder of such
request and/or collect evidence with respect to whether the Book is
Commercially Available. The Registry shall notify Google if it is able to
contact such Rightsholder and will inform Google whether such
Rightsholder wants the Book to remain classified as a No Display Book. If
the Rightsholder of the Book provides evidence that the Book is
Commercially Available or otherwise directs Google that he, she or it wants
the Book to remain a No Display Book, or if the Registry otherwise
determines that the Book is Commercially Available, then the Registry will
notify Google, and Google will not change the classification of the Book to a
Display Book at that time on that basis. If, by the end of the one hundred
twenty (120)-day period, the Registry is unable to contact the Rightsholder
or to find accurate evidence regarding whether the Book is Commercially
Available, then the Registry shall inform Google and Google may change the
classification of the Book to a Display Book, subject to Section 3.5 (Right to
Remove or Exclude).
3.3

Display Books.
(a)
Display and Non-Display Uses. Subject to Section
3.5 (Right to Remove or Exclude) and Section 4.3 (Preview Uses),
Google may make Display Uses and Non-Display Uses of all Display
Books; provided, however, that Google will not make Display Uses
of any Book that Google has classified as not Commercially
Available until the later of the Effective Date or sixty (60) days after
notifying the Registry that Google has classified such Book as not
Commercially Available. If, within such sixty (60)-day period, a
dispute under Section 3.2(d)(iv) (Disputes) arises between the
Rightsholder or the Registry and Google regarding whether such
Book is Commercially Available, Google will not make Display Uses

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of the Book unless and until Google prevails under Article IX
(Dispute Resolution).
(b)
Inserts in Display Books. If a Book is classified as
a Display Book, then, subject to Section 3.5 (Right to Remove or
Exclude), Google may make Display Uses and Non-Display Uses of
all Inserts in such Book. If a Book is classified as a No Display
Book, then all Inserts in that Book are also subject to Section 3.4 (No
Display Books).
(c)
Inserts in Government Works and Public Domain
Books. Google may use all Inserts in Government Works and Public
Domain Books in connection with any uses of such Government
Works and Public Domain Works in Google Products and Services,
subject to Section 3.5(b) (Right to Exclude from Display Uses and
Revenue Models).
(d)
Accommodation of Print Disabilities. Google may
provide the Display Uses in a manner that accommodates users with
Print Disabilities so that such users have a substantially similar user
experience as users without Print Disabilities.
(e)
Change to No Display. Rightsholders of Books
may, pursuant to Section 3.2(e)(i) (Change Requests by
Rightsholders), direct Google or the Registry to change the
classification of a Display Book to a No Display Book.
(f)
Author Landing Page Links. If, in any Display
Use of a Book in GBS for which Display Use is authorized pursuant
to this Amended Settlement Agreement, Google presents any web
page (i) dedicated to an individual author that includes hyperlinks to
that author’s Books and other features, or (ii) with content from a
Book that includes a hyperlink to the website of the publisher of such
Book, then Google will also include on such page a hyperlink (or
similar or appropriate technology) to that author’s website, in either
case only if (1) the Registry provides Google with such hyperlink,
and (2) such website promotes the author’s works, or provides
relevant information about the author, and is otherwise appropriate
for such purposes; provided that Google may remove any such

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hyperlink if Google becomes aware that such hyperlink no longer
functions to link to such website.
(g)
Display Use Attributes. With respect to their
Display Books, Google and the Rightsholders may negotiate and
Rightsholders may authorize Google to modify or remove the
restrictions that are placed on Google in Section 4.1(d) (Basic
Features of Institutional Subscriptions) and 4.2(a) (Basic Features of
Consumer Purchase), and comparable restrictions that may apply to
additional Revenue Models that may be agreed pursuant to Section
4.7 (Additional Revenue Models).
3.4

No Display Books.
(a)
Non-Display Uses. Subject to Section 3.5 (Right
to Remove or Exclude), Google may make Non-Display Uses of all
No Display Books.
(b)
Change to Display. Rightsholders of Books may,
pursuant to Section 3.2(e)(i) (Change Requests by Rightsholders),
direct Google or the Registry to change the classification of a No
Display Book to a Display Book, or to include any or all of their No
Display Books in one or more of the Display Uses, in which case
such Books will then be considered to be Display Books, and Article
IV (Economic Terms for Google’s Use of Books) shall apply.

3.5

Right to Remove or Exclude.
(a)

Right to Remove.

(i)
Right to Remove. A Rightsholder of a Book may direct
that his, her or its Book not be Digitized, or if already Digitized, that the
Book be Removed. If a Book has not yet been Digitized when Google
receives a Removal request for that Book, Google will use reasonable efforts
not to Digitize that Book, but, in any event, will comply with the request to
Remove. Google will implement a Rightsholder’s Removal direction as
soon as reasonably practicable, but in any event no later than thirty (30) days
after notice from the Registry, and in accordance with Section 3.5(b) (Right

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to Exclude from Display Uses and Revenue Models), will simultaneously act
promptly to exclude a Book for which it has received a Removal request. A
Fully Participating Library will implement a Rightsholder’s Removal
direction for a Book as soon as reasonably practicable, but in any event no
later than ninety (90) days after notice from the Registry.
(ii)
Back-up Storage. Google and Fully Participating
Libraries may maintain Books on back-up tapes or on any other back-up
storage media subject to compliance with the Security Standard. If any
back-up tape or other back-up storage media containing such Book is
restored, then any Book that has been Removed pursuant to Section 3.5(a)(i)
(Right to Remove) shall also be Removed from any copy made from the
back-up tape or other back-up storage media.
(iii)
Limitations on Right to Remove. The right to Remove
under Section 3.5(a)(i) (Right to Remove) is limited to requests made on or
before April 5, 2011 for Removal as described in Section 1.126(a)
(Removed) or after April 5, 2011 but on or before March 9, 2012, for
Removal as described in Section 1.126(b) (Removed). Thereafter, requests
will be honored only to the extent that the Books have not yet been Digitized
as of the date the request is made; if the Books at issue have already been
Digitized, the Rightsholder may request exclusion from particular Display
Uses (under Section 3.5(b)(i) (Right to Exclude)) but not Removal (under
Section 3.5(a)(i) (Right to Remove)).
(b)
Models.

Right to Exclude from Display Uses and Revenue

(i)
Right to Exclude. Any Rightsholder of a Book at any
time may direct Google or the Registry to exclude his, her or its Book, or any
portion thereof, from any one or more, or all, Display Uses, Revenue Models
or the Book Annotation sharing feature under Section 3.10(c)(ii) (Hyperlinks
and Book Annotations), and any Rightsholder of an Insert at any time may
direct that his, her or its Insert, or any portion thereof, be excluded from all
(but not less than all) Display Uses; provided that any Rightsholder of an
Insert may only direct that his, her or its Insert, or any portion thereof, be
excluded but not the entire Book, Public Domain Book or Government Work
in which its Insert is contained. Google shall implement any such direction
as follows. Google will implement a Rightsholder’s exclusion direction
promptly, but in any event no later than thirty (30) days after notice from the

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Registry or from resolution of the dispute in favor of such Rightsholder (in
the case of a challenge under Section 3.5(b)(ii) (Challenging Insert Exclusion
Requests) or Section 3.5(b)(vii) (Government Works and Public Domain
Works)). Google shall use commercially reasonable efforts to develop a
mechanism for excluding no more of Books or Inserts than Rightsholders
direct. If, after using such commercially reasonable efforts, Google is unable
to limit its exclusion to the Insert or portion of the Book or Insert directed by
a Rightsholder, Google may exclude up to the entire page or pages on which
such Insert or portion appears. If, however, Google or the Registry develops
a tool that enables Rightsholders to specify with precision the location and
amount of material in an Insert or portion of a Book or Insert that is less than
an entire page and for which the Rightsholder has directed exclusion, Google
shall, upon receipt of such direction, exclude such Inserts or portions of
Books or Inserts, but no more than that, from Display Uses as directed.
(1)
Exclusion from Library Digital Copy. Notwithstanding
Section 3.5(b)(i) (Right to Exclude), no Rightsholder may direct that his,
her or its Book or Insert be excluded from any Library Digital Copy
provided, however, that, in the case of a Book, a Rightsholder of the Book
may request Removal of such Book pursuant to Section 3.5(a) (Right to
Remove).
(ii)
Challenging Insert Exclusion Requests. The Rightsholder
of a Book that contains an Insert that the Rightsholder of the Insert has
directed be excluded may challenge such direction under law or contract
rights, and any dispute regarding such challenge shall be resolved pursuant to
Article IX (Dispute Resolution). In addition, if (a) the Rightsholder of a
Book that contains an Insert for which the Insert Rightsholder has directed
exclusion is not a Registered Rightsholder or (b) the Registered Rightsholder
of the Book that contains such Insert (1) determined not to challenge such
exclusion pursuant to the previous sentence and (2) does not object to
Google making such challenge, then Google may challenge whether the
Rightsholder of the Insert would have a right under the Copyright Act to
exclude such Insert. Google and the Registry will develop a process to
implement the foregoing. Any dispute regarding such challenge shall be
resolved pursuant to Article IX (Dispute Resolution).
(iii)
Coupling Requirement. Notwithstanding Section 3.5(b)(i)
(Right to Exclude), if the Rightsholder of any Library Work authorizes
Consumer Purchase or any additional Revenue Model that may be developed
pursuant to Section 4.7 (Additional Revenue Models) (except for any

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additional Revenue Model in which access to the Library Scan of that
Library Work is provided to users free of charge) of or for such Library
Work and Google uses a Library Scan of such Library Work for Consumer
Purchase or for such additional Revenue Model, then the Rightsholder
authorizes Google to include such Library Work in all Institutional
Subscriptions (the “Coupling Requirement”); provided, however, that if a
Library Work is Commercially Available as of the Notice Commencement
Date or becomes Commercially Available at any time during the two (2)year period after the Notice Commencement Date, the Coupling
Requirement will not apply to that Library Work; provided, further, that if, at
any time after the end of such two (2)-year period, the Library Work ceases
to be Commercially Available, then the Coupling Requirement shall
thereafter apply to such Library Work if Google is using the Library Scan for
Display Uses.
(iv)
Mistakes and the Coupling Requirement. If, as of the
Notice Commencement Date, a Library Work for which Google uses a
Library Scan for Consumer Purchase or any additional Revenue Model that
may be developed pursuant to Section 4.7 (Additional Revenue Models)
(except for any additional Revenue Model in which access to the Library
Scan of that Library Work is provided to users free of charge) is not
Commercially Available but Google mistakenly determined such Library
Work to be Commercially Available, and such Library Work does not
become Commercially Available at any time during the two (2)-year period
following the Notice Commencement Date, then, upon a determination that
the Library Work is not Commercially Available after such two (2)-year
period, the Coupling Requirement will apply to such Library Work if Google
is using a Library Scan for Display Uses. If, as of the Notice
Commencement Date or at any time during the two (2)-year period following
the Notice Commencement Date, such Library Work is mistakenly
determined to be not Commercially Available, then, upon determination that
the Library Work is Commercially Available, the Coupling Requirement will
not apply to such Library Work; provided, however, that if, at any time after
the end of such two (2)-year period, the Library Work ceases to be
Commercially Available, then the Coupling Requirement shall thereafter
apply to such Library Work if Google uses a Library Scan for Display Uses.
(v)
Waiver of Coupling Requirement. Google and the
Registry may, with the consent of a Fully Participating Library or a
Cooperating Library, agree to waive the Coupling Requirement as to Library
Works of which such Fully Participating Library or Cooperating Library is
the source and for which Google uses a Library Scan for Display Uses;

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provided, however, that for any Library Work for which a Library Scan is
constructed from more than one physical copy of a Library Work, such
waiver requires the consent of all Fully Participating Libraries and
Cooperating Libraries that are the source of copies of such Library Work.
Any Fully Participating Library and Cooperating Library may also agree to
such a waiver in its Digitization Agreement with Google or upon notice to
Google, in which event Google shall notify the Registry of such waiver.
Google and the Registry may, with the consent of all of the Fully
Participating Libraries and the Cooperating Libraries, acting through the
Designated Representative, agree to waive the Coupling Requirement as to
all Library Works subject to the Coupling Requirement.
(vi)
Continuing Obligations. If Google is authorized to make
a Display Use of a Book and, subsequent to such authorization, a
Rightsholder Removes such Book or excludes such Book or an Insert
contained therein, Google shall cease such Display Use except that Google
may make such Display Use of such Book or Insert to the extent necessary to
fulfill its obligations as of the date of such Removal or exclusion request to
any user who previously purchased access to or use of the Book through any
Institutional Subscription (for a period not to exceed ten (10) months or the
term of the Institutional Subscription, whichever is less, after the date of such
Removal or exclusion request) or Consumer Purchase or any substantially
similar Google Product or Service based on authorizations granted to Google
under a separate agreement entered into directly with the Rightsholder.
(vii)
Government Works and Public Domain Works. If a
Rightsholder of an Insert in a Government Work or a Public Domain Book
(not an Insert in a Book) directs Google to exclude its Insert from Display
Uses, Google may elect to reject such direction. In the event of such a
rejection, such Rightsholder may, notwithstanding any release in this
Amended Settlement Agreement, bring either a judicial action in United
States federal court against Google with respect to Google’s use of the Insert,
in which judicial action the Rightsholder may seek to recover any and all
relief available pursuant to the Copyright Act or, alternatively, the
Rightsholder may initiate dispute resolution under Article IX (Dispute
Resolution) with respect to Google’s rejection of the Rightsholder’s
direction. If the Rightsholder prevails in such arbitration, (i) the Arbitrator
shall issue an order prohibiting Google from making any and all Display
Uses of such Insert that the Arbitrator determines would be an infringement
of such Rightsholder’s Copyright Interest, (ii) Google shall pay the
Rightsholder’s reasonable attorneys’ fees and costs, including the cost of the
arbitration, and (iii) the foregoing and any other injunctive relief deemed

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appropriate by the Arbitrator shall be Google’s sole obligation and the
Rightsholder’s sole remedy for rejecting the Rightsholder’s direction for
exclusion of its Insert in a Government Work or Public Domain Book from
Display Uses (in addition to any award of injunctive relief, to prevent a
continuing infringement of such Rightsholder’s Copyright Interest in his, her
or its Insert, that may be awarded by the Arbitrator). Pending the Decision
of the Arbitrator, Google shall stop any and all Display Uses of the Insert.
(c)

Take-Down or Transfer Requests.

(i)
Definitions. As used in this Section 3.5(c) (Take-Down or
Transfer Requests), the following terms have the following meanings:
(1)
“Counter-Notice” means a request, in the form of notice
attached as Exhibit B to the Author-Publisher Procedures, that states,
under penalty of perjury, that the Initial Authorizing Rightsholder has the
good faith belief that he, she or it has rights in a Book that is the subject of
a Take Down Request or a Transfer Request necessary to authorize
Google to exploit such Book as it is being exploited in such Other Google
Program.
(2)
“Educational Books” means Books that, when
published, were intended primarily for sale to educational markets (i.e., K12, higher education, continuing education, vocational, professional, selfstudy, and similar educational markets) for use in educational programs.
(3)
“Initial Authorizing Rightsholder” means the Person
who had given Google permission to use a Book that is the subject of a
Take Down Request or a Transfer Request.
(4)
“Notifying Rightsholder” means a Rightsholder who
has a good faith belief that Google is exploiting a Book in an Other
Google Program without the necessary authorization from such
Rightsholder.
(5)
“Other Google Program” means a Google program
other than, but similar to, the Revenue Models, including the Google
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(6)
“Take Down Request” means a request, in the form of
notice attached as Exhibit A to the Author-Publisher Procedures, that
Google remove a Book from an Other Google Program.
(7)
“Transfer Request” means a request, in the form of
notice attached as Exhibit A to the Author-Publisher Procedures, to
transfer a Book from an Other Google Program to one or more Display
Uses in one or more of the Revenue Models.
(ii)
Procedures. The following procedures will apply to each
Book classified as In-Print under the Author-Publisher Procedures (except
for Educational Books) that is the subject of a contract between an author
and a publisher regarding publication of such Book executed prior to 1992
and that has not been amended thereafter to expressly grant or retain all
electronic rights pertinent to an Other Google Program if such Book is
displayed in an Other Google Program.
(1)
If Google receives a Take Down Request or a Transfer
Request from the Registry, Google shall send a copy to the Initial
Authorizing Rightsholder.
(2)
If the Initial Authorizing Rightsholder fails to respond
within thirty (30) days, then, if the request satisfies the requirements set
forth in the Author-Publisher Procedures, Google shall take down such
Book or transfer such Book into the Revenue Models, as specified in the
request. If Google transfers such Book into the Revenue Models, such
Book shall become subject to this Amended Settlement Agreement.
(3)
If the Initial Authorizing Rightsholder responds to a
Take Down Request by filing a Counter-Notice, the Registry will forward
the Counter-Notice to Google and the Notifying Rightsholder. If the
Counter Notice requirements set forth in the Author-Publisher Procedures
are met, Google may, in its discretion, take down, maintain or restore
access to such Book in the Other Google Program.
(4)
If the Initial Authorizing Rightsholder responds to a
Transfer Request by filing a notice of objection with the Registry, then
Google shall not include such Book in the Revenue Models and shall stop
displaying such Book in the Other Google Program while the Notifying

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Rightsholder and the Initial Authorizing Rightsholder resolve the dispute.
Google shall only restore access to such Book in any of the Revenue
Models or the Other Google Program once (a) the Initial Authorizing
Rightsholder and the Notifying Rightsholder jointly authorize Google to
do so or (b) either the Initial Authorizing Rightsholder or the Notifying
Rightsholder obtains a court (or, if the contract between the author and
publisher regarding publication of such Books permits, arbitration) ruling
giving it authority to direct Google to do so.
(5)
In any disputes between an Initial Authorizing
Rightsholder and a Notifying Rightsholder over which of them has the
right to authorize Google to exploit a Book in the Other Google Program
or in the Revenue Models, Google will not be named as a party or brought
into the dispute in any manner and will have no liability or responsibility
with respect to any such dispute.
3.6
Technical Adaptations. Except with respect to Books Removed under
Section 3.5(a) (Right to Remove), Google may make technical adaptations to (but not
adapt or alter the content of) all Books (whether Display or No Display) and Inserts as
reasonably necessary to preserve, maintain, manage, and keep technologically current its
copies of the Books and Inserts.
3.7

Contemplated Rightsholder Services.
(a)
Obligation. Google shall implement both of the
Contemplated Rightsholder Services (i.e., Institutional Subscriptions
and Consumer Purchases) within five (5) years after the Effective
Date. If Google discontinues both of the Contemplated Rightsholder
Services prior to the fifth (5th) anniversary of the Effective Date,
Google shall implement comparable replacement monetization
opportunities for the Rightsholders within a period of one year from
the date that Google discontinues the Contemplated Rightsholder
Services. Google’s sole obligation and the sole remedy for any
failure under this Section 3.7(a) (Obligation) is set forth in Sections
3.7(b) (Failure to Provide Contemplated Rightsholder Services)
through (d) (Third-Party Required Library Services Provider).
(b)
Failure to Provide Contemplated Rightsholder
Services. If (i) Google fails to implement either of the Contemplated
Rightsholder Services within five (5) years after the Effective Date or

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(ii) Google discontinues both of the Contemplated Rightsholder
Services prior to the fifth (5th) anniversary of the Effective Date, and
does not implement comparable replacement monetization
opportunities for the Rightsholders within a period of one year from
the date that Google discontinues the Contemplated Rightsholder
Services, then, in either case, Google’s right to make any and all
Non-Display Uses and Display Uses shall terminate ninety (90) days
after notice to Google by the Registry, except as may be authorized
by the Registry; provided, however, that if Google subsequently
offers one of the Contemplated Rightsholder Services, Google’s
rights to make any and all Non-Display Uses and Display Uses shall
be immediately re-instated. Notwithstanding the foregoing, if Google
believes that any actions or inactions of the Registry have
proximately caused Google to fail to provide the Contemplated
Rightsholder Services, then Google will provide the Registry with
notice describing the Registry’s actions or inactions within such
ninety (90)-day notice period, and the Registry’s notice of
termination will have no effect and Google may continue to make
any and all Non-Display Uses and Display Uses. Any dispute over
whether any action or inaction of the Registry has proximately caused
Google to fail to provide the Contemplated Rightsholder Services
shall be subject to the dispute resolution provisions of Article IX
(Dispute Resolution) and Google may make any and all Non-Display
and Display Uses pending the Decision of the Arbitrator.
(c)
Additional Contemplated Rightsholder Services
Provider. In addition, if (i) Google fails to implement both of the
Contemplated Rightsholder Services within five (5) years after the
Effective Date or (ii) Google discontinues both of the Contemplated
Rightsholder Services and does not implement comparable
replacement monetization opportunities for the Rightsholders within
a period of one year from the date that Google discontinues the
Contemplated Rightsholder Services, then, in either case, the
Registry on the one hand and/or the Fully Participating Libraries and
the Cooperating Libraries on the other hand, acting reasonably, may
work to find one or more provider(s) that can provide Consumer
Purchases, Institutional Subscriptions and/or the additional Revenue
Models listed in Section 4.7 (Additional Revenue Models), and/or
Required Library Services, on substantially the same terms described
in this Amended Settlement Agreement. Any such arrangement shall
be subject to the consent of the Registry, on the one hand, and the
Fully Participating Libraries and the Cooperating Libraries acting

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through the Designated Representative, on the other hand (but in the
case of the Fully Participating Libraries and the Cooperating
Libraries only as to Library Scans), which consent of the Registry
and the Fully Participating Libraries and the Cooperating Libraries
shall not be unreasonably withheld or delayed (any such provider is
referred to in this Amended Settlement Agreement as an “Additional
Contemplated Rightsholder Services Provider”). If an Additional
Contemplated Rightsholder Services Provider is identified and the
foregoing required consent is obtained, then Google will provide such
Additional Contemplated Rightsholder Services Provider with Digital
Copies of the Library Scans (so long as the Digital Copies are not
restricted from further distribution under the Digitization Agreement
between Google and a Fully Participating Library or a Cooperating
Library) and Digital Copies of other Books that may be provided by
Google without restriction. Such Digital Copies may be used by the
Additional Contemplated Rightsholder Services Provider solely to
provide the Contemplated Rightsholder Services and/or the additional
Revenue Models listed in Section 4.7 (Additional Revenue Models)
and/or Required Library Services in accordance with the terms of this
Amended Settlement Agreement and, in addition, with respect to
Digital Copies of Library Scans only, the terms of Google’s
agreements with each of the Fully Participating Libraries and the
Cooperating Libraries. Such Additional Contemplated Rightsholder
Services Provider is, in connection with any Claim arising out of its
making available Digital Copies of Books, deemed to be a successor
of Google for purposes of Section 10.1(g) (Google Releasees).
(d)
Third-Party Required Library Services Provider.
If Google provides a Digital Copy of the Library Scans to a ThirdParty Required Library Services Provider under Section 7.2(e)
(Required Library Services Requirement), then the Contemplated
Rightsholder Services may also be provided by the Third-Party
Required Library Services Provider in addition to the Required
Library Services, and Google will have no obligation to provide
Contemplated Rightsholder Services and will have no liability or
obligation with respect to Contemplated Rightsholder Services
provided by the Third-Party Required Library Services Provider.
(e)
Google’s Exclusion of Books. Google may, at its
discretion, exclude particular Books from one or more Display Uses
for editorial or non-editorial reasons. However, Google’s right to
exclude Books for editorial reasons (i.e., not for quality, user

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experience, legal or other non-editorial reasons) is an issue of great
sensitivity to Plaintiffs and Google. Accordingly, because Plaintiffs,
Google and the libraries all value the principle of freedom of
expression, and agree that this principle is an important part of GBS
and other Google Products and Services, Google agrees to notify the
Registry of any such exclusion of a Book for editorial reasons and of
any information Google has that is pertinent to the Registry’s use of
such Book other than Confidential Information of Google and other
than information that Google received from a third party under an
obligation of confidentiality.
(i)
Digital Copy of Excluded Books. Google will provide to
the Registry a Digital Copy of any Book that Google excludes for editorial
reasons. The Registry may, subject to Section 3.5 (Right to Remove or
Exclude), engage, with the consent (not to be unreasonably withheld) of the
Fully Participating Library or the Cooperating Library from which the
Library Scan of such Book was made (including, if Google constructed a
Digital Copy of a Book pursuant to Section 7.2(a)(i) (Fully Participating
Library Collections) from one or more physical Books, all such libraries that
were the source of such physical Books), a Third-Party Required Library
Services Provider that, once engaged, may make available to users a Digital
Copy of that Book for uses comparable to Display Uses and Non-Display
Uses; provided that, if a Book is not then Commercially Available and the
Third-Party Required Library Services Provider makes available the Book
for a fee, then the Third-Party Required Library Services Provider must also
offer the Required Library Services (Section 7.2(e) (Required Library
Services Requirement)) for the Book to the extent required by such Fully
Participating Library or Cooperating Library. Such Third-Party Required
Library Services Provider is, in connection with any Claim arising out of its
making available such Digital Copy of the Book, deemed to be a successor
of Google for purposes of Section 10.1(g) (Google Releasees).
3.8
Effect of Changes in Law. Google will be able to take advantage of any
future legislative change(s), such as legislation allowing the use of orphan works (if
enacted), that put Google at a competitive disadvantage in its use of Books in any Google
Products and Services that are subject to this Amended Settlement Agreement; provided,
however, that Google may choose to receive the benefit of such change(s) only if a third
party is actually taking advantage of such law(s) in connection with services that
competitively disadvantage Google in its provision of any such Google Products and
Services; provided, further, that no changes in the “fair use” doctrine as codified in
Section 107 of the Copyright Act shall trigger this Section 3.8 (Effect of Changes in
Law).

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3.9
Distribution Arrangements. When Google may make any Snippet Display
of a Book under this Amended Settlement Agreement, Google may also allow third
parties that have entered into agreements with Google (a) to display snippets served by
Google on their websites in response to user interactions on their websites and (b) to
cache temporarily snippets transmitted by Google as described in the foregoing clause (a)
for future display on their websites in response to user interactions on their websites.
3.10

Specific Prohibitions.
(a)
Prohibitions on Display. Except as expressly
permitted by this Amended Settlement Agreement or otherwise by
Registered Rightsholders or, for unclaimed works, by the Unclaimed
Works Fiduciary, Google shall not (i) display any Expression from
Books or Inserts; (ii) display any Expression from Books or Inserts in
a manner that would constitute a derivative work of such Books or
Inserts under the Copyright Act; or (iii) display summaries or
abstracts of, or compilations from, Books or Inserts created using
Digital Copies.
(b)
Prohibitions on Linking. Except as expressly
permitted by this Amended Settlement Agreement or otherwise by
Registered Rightsholders or, for unclaimed Books, by the Unclaimed
Works Fiduciary, Rightsholders or the Registry, Google shall not
create hyperlinks to Preview Use Book pages permitted by the terms
of this Amended Settlement Agreement from revenue generating
products or services if the effect of those links in the aggregate is to
detract from revenue under this Amended Settlement Agreement that
the Rightsholder(s) of such Book(s) would realize if the links did not
exist, unless such services or products (i) are search services
(including, for example, Google Web Search, Google Earth and other
Google services that show search results by browsing instead of by
entering a search query), or (ii) have the effect of making discovery
of Books easier, more efficient, more widespread, or more useful. If
Plaintiffs or any Rightsholders believe that this Section 3.10(b)
(Prohibitions on Linking) has been violated, as Plaintiffs’ and
Rightsholders’ sole remedy and Google’s sole obligation, the
Registry will notify Google of the existence of such links and if it is
agreed or an Arbitrator, pursuant to Article IX (Dispute Resolution),
determines that this Section 3.10(b) (Prohibitions on Linking) has
been violated, Google will expeditiously remove said links or come
to a separate agreement with the Registry to permit them.

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Integrity of the Text.

(i)
No Alteration of Text. Except as expressly authorized by
the Registered Rightsholder or, for unclaimed works, by the Unclaimed
Works Fiduciary, or in this Amended Settlement Agreement, Google may
not intentionally alter the text of a Book or Insert when displayed to users.
Changes in the formatting or presentation of text are not considered to be
alteration of the text, e.g., for the Accommodated Service.
(ii)
Hyperlinks and Book Annotations. Except as expressly
authorized by the Registered Rightsholder or, for unclaimed Books, by the
Unclaimed Works Fiduciary, Google may not add hyperlinks to any content
within a page of a Book or facilitate the sharing of Book Annotations, except
that Google may:
(1)
add hyperlinks within the Book for specific internal
references from text contained within the Book to other sections of the
Book, such as from a table of contents entry to the referenced page, from a
page number in the index to the page, or from internal references in the
Book to footnotes, endnotes, bibliographical material, appendices, figures,
and illustrations,
(2)
add a hyperlink from an explicit reference in the Book
to an online version of an external source cited in a footnote, endnote, or
bibliographical material,
(3)
add a hyperlink to a URL that the Rightsholder
included in a Book,
(4)
temporarily highlight or otherwise emphasize words in
response to a user’s action, so long as such highlight or emphasis appears
only on the user’s monitor and/or on a page printed by such user, and
(5)
Subject to the Rightsholder’s right to exclude its Books
from the Book Annotation sharing feature, allow a user to make Book
Annotations for the user’s own personal use and to share those Book
Annotations with a limited number of other users, provided that the feature

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that enables Book Annotations within Google Products and Services is
subject to the following limitations:
a)
Book Annotations may not be shared with the
general public, and
b)
Book Annotations may not be accessible to any
user who has not expressly chosen to access it either by active
selection or by participation in a group such as a class for which
this feature is used, and
c)
Book Annotations may not be displayed with
the Book for other users who do not already have the right to view
the Book, and
d)
for sharing of a Book Annotation in connection
with Consumer Purchase, the user may only share such Book
Annotation with no more than twenty-five (25) individuals and the
user must identify (e.g., by name, login or user id) each individual
with whom such Book Annotation will be shared, and
e)
for sharing of a Book Annotation as part of an
Institutional Subscription, the user may only share such Book
Annotation with the following other users of such Institutional
Subscription: instructors and students in a single academic course
sharing such Book Annotation in connection with such course
during an academic year or with students of the same course
during a subsequent academic year, and employees of the
subscriber of the Institutional Subscription sharing such Book
Annotation in connection with a discrete work project during the
course of that project.
(iii)
Advertising Content. Google may not place on, behind or
over the contents of a Book or portion thereof (including on Preview Use
pages or Snippet Display pages), as displayed to a user, any pop-up, popunder, or any other types of advertisements or content of any kind. In
addition to a Rightsholder’s right to exclude one or more of his, her or its
Books from Advertising Uses pursuant to Section 3.5(b)(i) (Right to
Exclude), the Unclaimed Works Fiduciary may exclude from Advertising

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Uses one or more unclaimed Books if Google displays animated, audio or
video advertisements in conjunction with those Books and the Registry
determines that exclusion from such Advertising Uses is in the best interests
of Rightsholders of such unclaimed Books.
3.11 Hosted Version for Rightsholders. Upon request by a Rightsholder of a
Book, Google will provide a hosted version of such Book for use in conjunction with
such Rightsholder’s website, similar to Google’s hosted version of Books in the Google
Partner Program. Such hosted version will contain the “look and feel” of the
Rightsholder’s website with minimal Google branding, which branding may be tailored
by the Rightsholder upon the Rightsholder’s further reasonable request.
3.12 Use of Digital Copies. Except as permitted by Sections 3.7(c) (Additional
Contemplated Rightsholder Services Provider), 3.7(e) (Google’s Exclusion of Books),
7.2(b)(ix) (Other Uses), 7.2(e)(ii) (Third-Party Required Library Services Provider) or
7.2(g)(ii)(2) (Alternative Accommodated Service Provider), neither Rightsholders nor the
Registry may authorize any Person to use Digital Copies of their Books or Inserts made
by or for Google without Google’s consent; provided that Rightsholders may authorize
any Fully Participating Library to use Digital Copies of their Books or Inserts in such
Fully Participating Library’s LDC consistent with such Fully Participating Library’s
Digitization Agreement with Google.
3.13 Communication of Rightsholder Directions to Google. Rightsholders
shall communicate to the Registry or, at their election and provided that Google
implements an Online interface for such purpose, directly to Google, all directions for
Removal, exclusion, inclusion, and pricing, and any other directions for Books and
Inserts provided for in this Amended Settlement Agreement. If, however, a Rightsholder
communicates directly with Google, then Google shall, before implementing any such
direction, (a) notify the Registry and provide the Registry with the Rightsholder’s contact
information and direction and (b) subject to Section 13.2 (Validating and Challenging
Claims), receive confirmation from the Registry that (i) for Books, the Person
communicating with Google is an appropriate Rightsholder under the Author-Publisher
Procedures, and (ii) Google is authorized to implement such direction under this
Amended Settlement Agreement, including (for Books) the Author-Publisher Procedures.
The Registry will promptly respond to any such notification and request for confirmation
from Google and, in any event, within the same period of time as the Registry typically
responds to requests directly from Rightsholders to the Registry.
3.14 Advertising Uses. Google may display advertisements on Preview Use
pages and other Online Book Pages (“Advertising Uses”). Advertising on general search
results pages in which the search is performed over multiple Books and/or over other
content such as web pages in response to a user query is not considered to be an
“Advertising Use,” even if a single Book is the sole search result of a given search on a

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search results page. Except as set forth in Section 3.10(c)(iii) (Advertising Content) and
Section 3.5(b)(i) (Right to Exclude), this Amended Settlement Agreement does not
otherwise limit Google’s right to display advertising anywhere on Google Products and
Services.
3.15

Extent of Rights and Authorizations.
(a)
Books. A Book Rightsholder’s rights and
Google’s authorizations under this Amended Settlement Agreement
apply to all of the Protected Expression of such Rightsholder
contained in a Book in which such Rightsholder holds a Copyright
Interest.
(b)
Inserts. A Rightsholder of an Insert has no rights
under this Amended Settlement Agreement with respect to any Book
or any portion of any Book in which such Insert appears, other than
the Insert itself, e.g., a Rightsholder of an Insert has no right to
Remove the Book in which his, her or its Insert appears, or to
authorize or to prohibit Display Uses of the Book in which his, her or
its Insert appears.
(c)
Other Content. If content (e.g., text or images) in
a Book is (i) in the public domain under the Copyright Act in the
United States or (ii) subject to a Copyright Interest not owned by any
Rightsholder of such Book or by any Rightsholder of any Insert in
such Book, this Amended Settlement Agreement neither authorizes
nor prohibits, nor releases any Claims with respect to, the use of such
content.

ARTICLE IV — ECONOMIC TERMS FOR GOOGLE’S USE OF BOOKS
4.1

Institutional Subscriptions.
(a)
Subscriptions.

General Guidelines for Pricing of Institutional

(i)
Objectives. The economic terms for Institutional
Subscriptions of Books will be governed by two objectives: (1) the

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Standard Revenue Splits and Discounting.
(a)

Obligation to Pay Revenue Share.

(i)
Net Purchase Revenues. Google shall pay to the Registry,
on behalf of the Rightsholders, the Standard Revenue Split for Purchases.
The “Standard Revenue Split for Purchases,” paid by Google to
Rightsholders, through the Registry, is seventy percent (70%) of Net
Purchase Revenues.
(ii)
Net Advertising Revenues. Google shall pay to the
Registry, on behalf of the Rightsholders, the Standard Revenue Split for
Advertising. The “Standard Revenue Split for Advertising,” paid by Google
to Rightsholders, through the Registry, is seventy percent (70%) of Net
Advertising Revenues.
(iii)
Agreed Revenue Splits. Notwithstanding clauses (i) and
(ii) above, for any Revenue Model(s) for any Book(s) classified as
Commercially Available, Google and the Rightsholder(s) of such Book(s)
each has the right to request that the other negotiate a revenue split different
from the Standard Revenue Split for Advertising and the Standard Revenue
Split for Purchases (together, the “Standard Revenue Splits”). If Google or a
Rightsholder requests that the revenue split be negotiated for any Revenue
Model(s) and Google and the Rightsholder are unable to agree on a revenue
split different from the Standard Revenue Splits for such Revenue Model(s),
then such Standard Revenue Splits (or the then applicable previously
negotiated and agreed revenue split, if any) shall apply to such Books for that
Revenue Model(s); provided that Google may choose not to make such
Books available through such Revenue Model(s) as permitted under Section
3.7(e) (Google’s Exclusion of Books)) and the Rightsholder may choose to
exclude its Book(s) from such Revenue Model(s) pursuant to Section 3.5(b)
(Right to Exclude from Display Uses and Revenue Models). If Google and
such Rightsholder(s) agree to a revenue split, then beginning within sixty
(60) days after the date of such agreement, any calculations in Section 4.5(b)
(Discounting, Special Offers and Subsidies) and any payments in Section 4.6
(Payment Terms) shall be based on such agreed revenue split rather than the
Standard Revenue Splits. Google or the Rightsholder(s) shall notify the
Registry of any agreed revenue split, the date of agreement to such revenue
split, and the Books to which it applies. The Registry may not disclose
information about any agreed revenue split with any Rightsholder (other than

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any other Rightsholder(s) of the Book(s) to which such agreed revenue split
applies) unless such information is otherwise publicly available. Once a
Book is classified as not Commercially Available, the Standard Revenue
Splits shall apply beginning no later than sixty (60) days after such
reclassification, notwithstanding any prior agreed revenue split between
Google and a Rightsholder.
(b)

Discounting, Special Offers and Subsidies.

(i)
Discounts. Google may provide discounts off the List
Prices at its sole discretion. If Google elects to provide such discounts, the
Standard Revenue Split for Purchases paid to the Registry for the benefit of
the Rightsholders will be based on the List Prices, unless otherwise set forth
in this Section 4.5(b) (Discounting, Special Offers and Subsidies) or unless
otherwise agreed by Google and the Registry.
(ii)
Consumer Purchases. The Registry may authorize Google
to make special offers of Books available through Consumer Purchases at
reduced prices from the List Prices, subject to notification of such reduced
price to the Registered Rightsholders of the Book, with an opportunity for
any such Rightsholder (for his, her or its claimed Books) or the Unclaimed
Works Fiduciary (for unclaimed Books) not to approve such reduced price.
If Google sells Books at such a reduced price, the Standard Revenue Split for
Purchases or a revenue split agreed pursuant to Section 4.5(a)(iii) (Agreed
Revenue Splits) will be based on such reduced price.
(iii)
Use of Intermediaries for Institutional Subscription Sales
Generally. Google may offer a discount of up to ten percent (10%) off the
List Prices for Institutional Subscriptions for any Institutional Subscriptions
sold through intermediaries.
(iv)
Sales of Institutional Subscriptions through Institutional
Consortia. Approved discounts, if any, that Google is authorized to offer to
an Institutional Consortium or its members will be included as part of the
Pricing Strategy. Additional discounts will require Registry approval.
Unless otherwise agreed upon by the Registry, Google is only authorized to
offer discounts to Institutional Consortia if members of the Institutional
Consortium purchase Institutional Subscriptions for at least seventy percent
(70%) of the FTEs (i.e., full-time equivalent students) of the members of the

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Institutional Consortium. For purposes of this Section 4.5(b)(iv) (Sales of
Institutional Subscriptions through Institutional Consortia), absent agreement
of the Registry, Google may not offer such discount to any Institutional
Consortium (or its members) that was not a member of the International
Coalition of Library Consortia as of the date on which the then-current
Pricing Strategy became effective and that was formed for the primary
purpose of entering into an Institutional Subscription agreement with
Google. Google will notify the Registry no less than thirty (30) days prior to
entering into an Institutional Subscription agreement, with an approved
Institutional Consortium discount, with an Institutional Consortium (or its
members) that was not a member of the International Coalition of Library
Consortia as of the date on which the then-current Pricing Strategy became
effective.
(v)
and Resellers.

Sale of Consumer Purchases through Affiliate Programs

(1)
Affiliate Programs. With respect to sales of Books
through Consumer Purchase through an Affiliate Program, Google may
deduct from the money otherwise owed to the Registry for the benefit of
the Rightsholders from such sale pursuant to Section 4.5(a)(i) (Net
Purchase Revenues), up to three and three-quarters percent (3.75%) of the
List Price as compensation actually paid through the Affiliate Program;
provided, however, that such deduction will be made only to the extent
and in an amount equal to one-half (1/2) the compensation actually paid
by Google through the Affiliate Program. “Affiliate Program” means a
program by which Google authorizes third parties to link their websites to
Google Products and Services using specially formatted links and pays
such third parties referral fees for sales of Books through Consumer
Purchase to users referred to Google through such links.
(2)
Resellers. To the extent that Google makes Books
available through Consumer Purchases pursuant to this Amended
Settlement Agreement, Google will allow resellers to sell access to such
Books to their end users. Google will be responsible for hosting and
serving the Digital Copies of such Books, and will be responsible for the
security of such Digital Copies in accordance with Article VIII (Security
and Breach). Google will permit the reseller of a Book to retain a majority
of Google’s share of Net Purchase Revenues from Consumer Purchases
through such reseller.

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(vi)
Subsidies for Fully Participating Libraries and
Cooperating Libraries. Google may subsidize the purchase of Institutional
Subscriptions by Fully Participating Libraries and Cooperating Libraries and
the amount paid to the Registry, on behalf of Rightsholders, will be as if no
such subsidy had been provided.
(vii)
Rightsholders’ Consumer Subscription Discount. If and at
such time as a Consumer Subscription is available from Google pursuant to
Section 4.7(c) (Consumer Subscription Models), individual Rightsholders
may, at the Registry’s discretion, be offered a discount off of the price for
such Consumer Subscription, which discount is subject to the approval of
Google and the Registry.
(c)
Sales and Other Taxes. In all cases, Net Purchase
Revenues and Net Advertising Revenues shall not include sales or
other government charges or taxes. Google shall charge any
applicable sales or other government charges or taxes in addition to
the List Price or any other price authorized pursuant to this Amended
Settlement Agreement.
4.6

Payment Terms.
(a)
Payment Terms. Google shall remit payment to
the Registry under this Article IV (Economic Terms for Google’s Use
of Books) within (i) sixty (60) days after the end of each calendar
quarter for payments made with respect to Net Advertising Revenues
and Net Purchase Revenues received by Google during the first full
twelve (12) months after the Effective Date, and (ii) sixty (60) days
after the end of each calendar month for payments made with respect
to Net Advertising Revenues and Net Purchase Revenues received by
Google thereafter. Payments to the Registry shall be made either by
check or (if by wire transfer) pursuant to the wire transfer instructions
provided by the Registry.
(b)
Exceptions. Notwithstanding the foregoing
provisions of Section 4.5 (Standard Revenue Splits and Discounting)
and this Section 4.6 (Payment Terms), Google shall not be required
to pay the Registry for (i) any purchase of or access to Books through
any fraudulent or invalid means, including the fraudulent use of

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Payment to Class Members Whose Books and Inserts Have Been Digitized). The
Registry shall make payments to Registered Rightsholders from amounts received by it
pursuant to Article IV (Economic Terms for Google’s Use of Books), or shall cause
payments to be made from the Settlement Fund as provided in the Plan of Allocation and
the Registry shall be responsible for correcting or causing to be corrected any errors in
making such payments.
5.5
Attorneys’ Fees. Counsel for the Author Sub-Class shall apply to the
Court for an award of attorneys’ fees and reimbursement of expenses in a total amount
not to exceed thirty million United States dollars (U.S. $30 million). Google has agreed
to pay those amounts over and above the other consideration to the Amended Settlement
Class, and agrees not to undermine in any way, or encourage anyone else to undermine in
any way, the petition for attorneys’ fees filed by Counsel for the Author Sub-Class so
long as such petition seeks fees and reimbursement of expenses in the amount of thirty
million United States dollars (U.S. $30 million). In no event will Google be obligated to
pay any attorneys’ fees and expenses for Counsel for the Author Sub-Class in excess of
thirty million United States dollars (U.S. $30 million). Attorneys’ fees and expenses
consistent with this Section 5.5 (Attorneys’ Fees) that are granted by the Court shall be
paid by the Depository Bank within ten (10) Business Days after the Effective Date by
wire transfer to counsel for the Author Sub-Class.
ARTICLE VI — ESTABLISHMENT AND CHARTER OF REGISTRY
6.1

Functions. Before the Effective Date, Plaintiffs will establish a registry

that:
(a)
is authorized to act on behalf of Rightsholders as
set forth in this Amended Settlement Agreement,
(b)
will own and maintain a rights information
database for Books and Inserts and their authors and publishers,
(c)
will, from its inception, use commercially
reasonable efforts to locate Rightsholders of Books and Inserts,
(d)
will, on behalf of Rightsholders, receive payments
from Google under this Amended Settlement Agreement and
distribute those payments to Registered Rightsholders in accordance
with this Amended Settlement Agreement, the Plan of Allocation and
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will assist in the resolution of disputes between

(f)
will, upon request, monitor Google’s display and
pricing of Books for Rightsholders located outside of the United
States to ensure that they conform to the requirements of this
Amended Settlement Agreement and to such Rightsholders’
instructions, and use commercially reasonable efforts to provide a
means for such Rightsholders themselves to monitor and verify their
claimed Books, and
(g)
will have such other responsibilities (i) as are set
forth in this Amended Settlement Agreement and (ii) as the Charter
may permit or as the Board of Directors of the Registry may
determine are consistent with the Registry’s functions and are not
inconsistent with this Amended Settlement Agreement.
6.2

Charter.
(a)
Not-For-Profit Entity. The Registry will be
organized and operated as a not-for-profit entity, and all funds
received by the Registry under this Amended Settlement Agreement
will be for the exclusive direct or indirect benefit of the
Rightsholders, subject to the restrictions herein.
(b)

Organizational Structure.

(i)
General. The Registry will be organized on a basis that
allows the Registry, among other things, to (i) represent the interests of
Rightsholders in connection with this Amended Settlement Agreement, (ii)
respond in a timely manner to requests by Google, Fully Participating
Libraries and Cooperating Libraries, and (iii) to the extent permitted by law,
license Rightsholders’ U.S. copyrights to third parties (in the case of
unclaimed Books and Inserts, the Unclaimed Works Fiduciary may license to
third parties the Copyright Interests of Rightsholders of unclaimed Books
and Inserts to the extent permitted by law).

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(ii)
Board of Directors. The Registry will have equal
representation of the Author Sub-Class and the Publisher Sub-Class on its
Board of Directors, with each act of the Board requiring a majority of the
directors, with such majority including at least one director who is a
representative of the Author Sub-Class and one director who is a
representative of the Publisher Sub-Class. The Board of Directors will have
at least one representative of the Author Sub-Class from each of the
following countries: the United States, Canada, the United Kingdom and
Australia; and at least one representative of the Publisher Sub-Class from
each of the following countries: the United States, Canada, the United
Kingdom and Australia.
(iii)
Unclaimed Works Fiduciary. The Charter will provide
that the Registry’s power to act with respect to the exploitation of unclaimed
Books and Inserts under the Amended Settlement will be delegated to an
independent fiduciary (the “Unclaimed Works Fiduciary”) as set forth in
Sections 3.2(e)(i) (Change Requests by Rightsholders), 3.10 (Specific
Prohibitions), 4.2(c)(i) (Pricing Bins), 4.3 (Preview Uses), 4.5(b)(ii)
(Consumer Purchases), 4.7 (Additional Revenue Models), 6.2 (Charter), and
6.3 (Unclaimed Funds and Public Domain Funds) of the Amended
Settlement Agreement and Sections 3.2 and 3.3 (Procedures for Changing
Classification of a Book) of the Author-Publisher Procedures, and otherwise
as the Board of Directors of the Registry deems appropriate. The Unclaimed
Works Fiduciary will be a person or entity that is not a published book
author or book publisher (or an officer, director or employee of a book
publisher). The Unclaimed Works Fiduciary (and any successor) will be
chosen by a supermajority vote of the Board of Directors of the Registry and
will be subject to Court approval.
(iv)
Unclaimed Funds and Public Domain Funds. The Charter
will also direct the Registry to follow the guidelines in this Amended
Settlement Agreement regarding Unclaimed Funds and Public Domain
Funds described in Section 6.3 (Unclaimed Funds and Public Domain
Funds). The Registry will use funds from the Settlement, as well as
Unclaimed Funds as described in Section 6.3 (Unclaimed Funds and Public
Domain Funds), to attempt to locate Rightsholders of unclaimed Books and
Inserts.
(v)
Limitations. In addition, the Charter will prohibit the
Registry from coordinating Rightsholders for purposes of representing them
as a sub-group regarding any matter under this Amended Settlement

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Agreement, or working with any sub-group of Rightsholders to exclude their
Books from Display Uses or Non-Display Uses, or to advocate that any subgroup of Rightsholders decrease its participation in the Settlement in any
manner. Notwithstanding the foregoing, nothing herein shall limit or restrict
the Registry from being able to represent the interests of all Author SubClass members as a sub-group or all Publisher Sub-Class members as a subgroup.
(c)
Registry Commitments. The Plaintiffs shall cause
the Registry (i) to ratify this Amended Settlement Agreement at the
first meeting of its Board of Directors; (ii) to adopt a resolution by
which the Registry shall become a signatory to this Amended
Settlement Agreement; (iii) to adopt a Certificate of Incorporation
and bylaws that implement the requirements of Sections 6.1
(Functions), 6.2 (Charter) and 6.3 (Unclaimed Funds and Public
Domain Funds); and (iv) to not take any act inconsistent with its
obligations under this Amended Settlement Agreement. Google will
have the right to approve such Certificate of Incorporation and
bylaws for conformance with the foregoing commitments prior to
their filing or adoption (as the case may be), such approval not to be
unreasonably withheld or delayed.
6.3

Unclaimed Funds and Public Domain Funds.
(a)
(i)

Unclaimed Funds.
Unclaimed Funds for Unclaimed Books.

(1)
Subject to clauses (2) and (3) below, any revenues paid
to the Registry and due to Rightsholders of Books that are unclaimed by
such Rightsholders under this Amended Settlement Agreement
(“Unclaimed Funds”) will be held by the Registry for the benefit of the
Rightsholder(s) of such Books until such Rightsholders register and claim
such Books.
(2)
Beginning with the sixth year after the Effective Date,
and every year thereafter, subject to the approval of the Unclaimed Works
Fiduciary, the Registry may use up to twenty-five percent (25%) of
Unclaimed Funds earned in any one year that have remained unclaimed

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for least five (5) years (such percentage to be allocated across all
unclaimed Books in proportion to the Unclaimed Funds that they earned)
for the purpose of attempting to locate the Rightsholders of unclaimed
Books. The Board of Directors of the Registry, in consultation with the
Unclaimed Works Fiduciary, will determine how to use such Unclaimed
Funds to attempt to locate the Rightsholders of unclaimed Books,
including the use, as appropriate, of national and international licensing
and collecting societies, reproduction rights organizations, and
associations of authors and publishers.
(3)
Beginning ten (10) years after the Effective Date, any
Unclaimed Funds shall be allocated proportionally to the United States,
Canada, the United Kingdom and Australia, based, respectively, on the
number of Books registered with the United States Copyright Office (for
the United States) and the number of Books published in Canada, the
United Kingdom and Australia. Subject to the approval of the Unclaimed
Works Fiduciary as to the timing of such motions, the Registry may file a
motion or motions with the Court recommending how Unclaimed Funds
held at least ten (10) years should be distributed to literacy-based charities
in each such country that directly or indirectly benefit the Rightsholders
and the reading public, after consultation with Google and, acting through
the Designated Representative, the Fully Participating Libraries and the
Cooperating Libraries. The charities will be entities that advance literacy,
freedom of expression, and/or education and are (a) described in Section
501(c)(3) of the Internal Revenue Code (for Unclaimed Funds from Books
registered with the United States Copyright Office), (b) organizations
qualifying as “Charitable Organizations,” as defined in Section 149.1 of
the Income Tax Act of Canada (for Books published in Canada), (c) any
body recognized as a charity under the Charities Act 2006, Charities and
Trustee Investment (Scotland) Act 2005 or Charities Act (Northern
Ireland) 2008 or any legislation replacing or amending such acts (for
Books published in the United Kingdom), or (d) charities that are exempt
from income tax in Australia (for Books published in Australia) and, for
avoidance of doubt, will not include the Authors Guild, Association of
American Publishers or other trade organizations. Such motion or
motions will be made with notice to and an opportunity to be heard by the
attorneys general of all states in the United States, all Rightsholders whom
the Registry will have been able to locate as of that time, and all Fully
Participating Libraries and Cooperating Libraries. This Section 6.3(a)(i)
(Unclaimed Funds for Unclaimed Books) is subject to Section 17.23
(Court’s Continuing Jurisdiction).

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(ii)
Abandoned Funds for Claimed Books. Any revenues due
to Registered Rightsholders of claimed Books will be held by the Registry
for the benefit of such Rightsholders until paid to such Rightsholders in
accordance with this Amended Settlement Agreement; provided that, any
such revenues that are abandoned in accordance with applicable law will be
distributed to the appropriate governmental authority in accordance with
applicable law.
(b)
Public Domain Funds. Funds that may be
mistakenly paid by Google to the Registry for books that are in the
public domain under the Copyright Act in the United States (“Public
Domain Funds”) will be distributed according to the guidelines set
forth in this Section 6.3(b) (Public Domain Funds). If Google pays
the Registry Public Domain Funds derived from Institutional
Subscriptions or Consumer Subscriptions, then those funds will be
distributed on a proportional revenue basis among Registered
Rightsholders whose Books are included within each subscription. If
Google pays the Registry Public Domain Funds from Consumer
Purchases, Advertising Uses, per-page printing fees pursuant to
Section 4.8(a)(ii) (Printing), or additional Revenue Models set forth
in Sections 4.7 (Additional Revenue Models) (if Google and the
Registry agree to implement such Revenue Models) and such funds
have not yet been paid to a Registered Rightsholder, then the Registry
will return those Public Domain Funds to Google for distribution, at
Google’s option, to a not-for-profit entity or to any consumer that
may have purchased access to a book that is in the public domain
under the Copyright Act in the United States. Google will have no
right to reclaim Public Domain Funds for a book that is in the public
domain under the Copyright Act in the United States from a Person
who claimed he, she or it is a Rightsholder of such book once the
Registry pays such funds to such Person.
(c)
Records and Reporting. The Registry shall keep
accurate records of its disbursement of Unclaimed Funds and Public
Domain Funds. The Registry shall prepare annual written reports of
the same and shall submit such reports to Google within forty-five
(45) days after the end of each calendar year.
(d)
Audit Rights. Google may, upon thirty (30) days’
prior notice and at its own expense, retain a nationally recognized
independent and mutually-acceptable independent auditor (whose

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fees are not contingency based), under a duty of confidentiality to the
Registry, to review and audit the Registry’s relevant records to
confirm the payments made under Section 6.3(a) (Unclaimed Funds)
and Section 6.3(b) (Public Domain Funds). The audit shall: (i) be
subject to the Registry’s security and confidentiality requirements;
(ii) occur no more than once every calendar year and not during the
first or last three (3) weeks of a calendar quarter; (iii) transpire during
the Registry’s normal business hours; and (iv) cover a period not to
exceed the previous four (4) calendar years. The Registry will
promptly correct any payment errors. In addition, if the audit reveals
an underpayment of five percent (5%) or more in the payments for
any calendar quarter, then the Registry shall pay for the reasonable
costs associated with the audit. The accounting firm may only
disclose to Google whether or not the Registry is in compliance with
its payment obligations under Section 6.3(a) (Unclaimed Funds) and
Section 6.3(b) (Public Domain Funds) and, if the Registry is not in
compliance, the amount of any underpayment and supporting
calculations.
6.4

Funding and Technical Assistance. Google shall:
(a)
fund the set-up and operations of the Registry
according to the terms set forth in Section 5.2 (Payment For Registry,
Notice and Claims Administration); and
(b)
provide reasonable technical assistance with
respect to the design, development and maintenance of the Registry.

6.5

Google’s Rights to Registry Data.
(a)
Data for Google. The Registry will provide
Google with access to such Registry data, including all updates, as
are reasonably necessary for Google to perform its obligations under
this Amended Settlement Agreement.
(b)
Data for Fully Participating Libraries. The
Registry will provide Google with access to such Registry data,
including all updates, as are reasonably necessary for Fully
Participating Libraries to perform their obligations under their
respective Library-Registry (Fully Participating) Agreements.

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Google may provide to the Fully Participating Libraries such
Registry data, including all updates, as are reasonably necessary for
Fully Participating Libraries to perform their obligations under their
respective Library-Registry (Fully Participating) Agreements.
(c)
Survival. Google’s rights to have access to data
about a Book or Insert will survive the expiration of the term of the
U.S. copyright in such Book or Insert and, to the extent that Google
requires access to data after the expiration of the terms of all U.S.
copyrights in all Books and Inserts, the Registry, if still operational at
such time, shall provide such access.
6.6

Exchange of Data between Google and the Registry.
(a)
Data Provided by Google. Google shall provide
the following to the Registry:
(i)
Digital Copies to Libraries. The name of any library to
which it has provided Digital Copies of Books Digitized in the United States
and, upon request of the Registry, the library at which a particular Book has
been Digitized.
(ii)
Digitized Books. On at least a quarterly basis, an update
to the list of Books, Public Domain Books with a copyright date after 1922
and Government Works that Google has Digitized under this Amended
Settlement Agreement along with Metadata with respect to such Books to the
extent that Google is permitted to do so under then-existing contracts with
Metadata providers. Google, Plaintiffs, and the Registry will cooperate to
obtain such Metadata providers’ permission for Google to provide Plaintiffs
and the Registry with such lists; provided that the Registry shall be
responsible for payment of any additional license fees to such providers to
the extent required. In communicating between them, Google and the
Registry will use a unique identifier for each Book, Public Domain Book
with a copyright date after 1922 or Government Work. The update for a
Book, Public Domain Book with a copyright date after 1922 or Government
Work will be available within a reasonable period after Digitization and
completion of processing of such Book, Public Domain Book with a
copyright date after 1922 or Government Work by Google. The data
provided shall include information for each Book regarding the Display

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Uses, if any, that are being made of the Book and identification of any Books
that Google is not offering for sale, including any Books that Google
excludes from Display Uses for non-editorial reasons (in addition to
Google’s obligation under Section 3.7(e) (Google’s Exclusion of Books)).
The Registry will use this information for internal purposes only, provided
that an individual record of a Book, Public Domain Book with a copyright
date after 1922 or Government Work may be disclosed by the Registry to
any Rightsholder of that Book or an Insert in that Book, Public Domain
Book with a copyright date after 1922 or Government Work. The Registry
may need permission from Metadata providers to obtain such Metadata, and
will be responsible for payment of any additional license fees to the extent
required by such providers.
(iii)
Books Sold. Along with the payments required under
Section 4.6 (Payment Terms) for the applicable period, a list of the Books
sold, the number of Books sold, and, for each such sale, the sale price.
(iv)
Library Scans. Upon request by the Registry and if a
Fully Participating Library or a Cooperating Library invokes its rights
pursuant to Section 7.2(e)(ii) (Third-Party Required Library Services
Provider), reasonable information regarding Google’s provision of Required
Library Services, to determine compliance with Section 7.2(e)(i)
(Obligation).
(v)
Usage Data. Data sufficient to enable the Registry to
calculate Subscription Usage Fees and Book Usage Fees, as defined in the
Plan of Allocation.
(vi)
Registration/Claims Process Data. All data provided to
Google by members of the Amended Settlement Class or their agents in
connection with the registration, claims, and opt out processes. Such data
shall be subject to a Registry privacy policy.
(vii)
Additional Information. Additional data, including
updates, as reasonably necessary for the Registry to perform its obligations
under this Amended Settlement Agreement.
(b)
No Google Licenses. Except with respect to (i) the
limited right to use Digital Copies of Library Scans and of Books

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other than Library Works provided by Google pursuant to Section
3.7(c) (Additional Contemplated Rightsholder Services Provider),
Section 7.2(e)(ii) (Third-Party Required Library Services Provider)
and Section 7.2(g)(ii)(2) (Alternative Accommodated Service
Provider) and (ii) the limited right to use information provided by
Google pursuant to Section 6.6(a) (Data Provided by Google), no
licenses are granted by Google to the Rightsholders, the Registry,
Plaintiffs or any other Person pursuant to this Amended Settlement
Agreement, by implication, estoppel or otherwise.
(c)
Data Provided by the Registry. The Registry shall
provide the following to Google:
(i)
Books Claimed. A list of all Books and Inserts for which
a Registered Rightsholder has registered with the Registry, instructions with
respect to the Removal of Books and the exclusion or inclusion of Books and
Inserts pursuant to Article III (Google Book Search – Rights, Benefits and
Obligations) and to the Specified Price pursuant to Section 4.2(b)(i)(1)
(Specified Price), and any other directions for Books and Inserts provided for
in this Amended Settlement Agreement.
(ii)
Metadata Corrections. Any corrections to the Metadata,
and any other corrections or modifications to information the Registry
previously provided to Google regarding a Book or Insert.
(iii)
Registered Rightsholders. The identity of any Registered
Rightsholder for a given Book or Insert; provided, however, that if the Book
or the Insert was published under a pseudonym, then the Registry will only
disclose that pseudonym to Google and, provided further, that if a
Rightsholder requests that his, her or its identity not be disclosed to Google,
then the Registry will only disclose an alias. The Registry will neither
encourage Rightsholders to request, nor discourage Rightsholders from
requesting, such non-disclosure. The Registry will also provide a means for
Google to match contact information and other identifying information for a
Rightsholder against the Registry’s information pertaining to that
Rightsholder. Such mechanism need not reveal the Rightsholder’s contact
information to Google. Rightsholder information provided by the Registry is
subject to the terms of Section 15.3 (Confidentiality of Rightsholder
Information).

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(d)
Claimed Books to be Public. The Registry will
make publicly available whether or not a Book has been registered
with the Registry and, for Books that have been registered, the
identity of the Registered Rightsholder, unless the Registered
Rightsholder requests that such information not be made public for
reasonable privacy concerns, as determined by the Registry.
(e)
Copyright Status. The Registry and Google will
provide each other with information that each obtains bearing on the
copyright status of works that are or may be Books or Inserts.
(f)
No Personally Identifiable Information. In no
event will Google provide personally identifiable information about
end users to the Registry other than as required by law or valid legal
process.
6.7
Authorization of Registry. Where this Amended Settlement Agreement
confers on the Registry rights and obligations with respect to Books and Inserts,
including with respect to the Registry’s relationship with each of Google, the Fully
Participating Libraries, the Cooperating Libraries and the Public Domain Libraries,
Plaintiffs and all Rightsholders, as of the Effective Date, shall be deemed to have
authorized the Registry to exercise such rights and perform such obligations on behalf of
the Rightsholders with respect to their respective Books and Inserts, including to enter
into Library-Registry Agreements. In no event, however, may the Registry direct Google
to change the classification of a Book, include or exclude a Book or Insert in or from any
Display Use, or take any other action, that is contrary to such Book or Insert
Rightsholder’s express direction with respect to such Book or Insert, as made pursuant to
and in conformance with this Amended Settlement Agreement.
ARTICLE VII — FULLY PARTICIPATING LIBRARY AND COOPERATING
LIBRARY RIGHTS AND OBLIGATIONS
7.1
Becoming a Fully Participating Library or a Cooperating Library. Google
shall notify the Registry when it has identified a library that wishes to become a Fully
Participating Library or a Cooperating Library. The Registry shall have approval rights
as to whether a library may become a Fully Participating Library or a Cooperating
Library; provided, however, that in all cases the Registry may only withhold its approval
for a library to become a Fully Participating Library or a Cooperating Library due to (a)
reasonable concerns as to whether the library can comply with the obligations imposed
on a Fully Participating Library or a Cooperating Library by this Amended Settlement

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UNITED STATES DISTRICT COURT
'ITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -x
-X

Filed 03/22/11 Page 1 of 48

USDCSDNY

DOCUMENT

,ELBCTRONICALLY FiLED

DOC #! _----:"-;--'-.,
I.lATli FILED: 3· 'hL - \ 1 -

THE AUTHORS GUILD et al.,
THE AUTHORS GUILD et al.,
Plaintiffs,
Plaintiffs,
- against - against -

OPINION
OPINION

GOOGLE INC.,
GOOGLE INC.,

05 Civ. 8136 (DC)
05 Civ. 8136 (DC)
Defendant.
Defendant.
-

APPEARANCES
APPEARANCES::

-

-

-

-

-

-

-x

(See last page)
(See last page)

CHIN,
Judge
CHIN, Circuit Judge
Before the Court is plaintiffs' motion pursuant ~o Rule
Before the Court is plaintiffs' motion pursuant ,to Rule
23 of the Federal Rules of Civil Procedure for final approval of
23 of the Federal Rules of Civil Procedure for final approval of

the proposed settlement of this class action on the terms set
the proposed settlement of this class action on the terms set
forth in the Amended Settlement Agreement (the "ASAH). The
The
forth in the Amended Settlement Agreement (the "ASA").
question presented is whether the
is fair, adequate, and
question presented is whether the ASA is fair, adequate, and
reasonable.
reasonable.

I conclude that it is not.
I conclude that it is not.

While the digitization of books and the creation of a
While the digitization of books and the creation of a
universal digital library would benefit many, the
would
universal digital library would benefit many, the ASA would
simply go too far.
simply go too far.

It would permit this class action - - which
It would permit this class action -- which

to
was brought against defendant Google Inc. ("GoogleI1) challenge
was brought against defendant Google Inc. ("Google") to challenge
its scanning of books and display of "snippets" for on-line
its scanning of books and display of "snippets" for on-line
searching -- to implement a forward-looking business arrangement
searching - - to implement a forward-looking business arrangement
that would grant Google significant rights to exploit entire
that would grant Google significant rights to exploit entire

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books, without permission of the copyright owners.

Indeed, the

ASA would give Google a significant advantage over competitors,
rewarding it for engaging in wholesale copying of copyrighted
works without permission, while releasing claims well beyond
those presented in the case.
Accordingly, and for the reasons more fully discussed
below, the motion for final approval of the ASA is denied.

The

accompanying motion for attorneys' fees and costs is denied,
without prejudice.
BACKGROUND
A.

The Facts and Prior Proceedings
In 2004, Google announced that it had entered into

agreements with several major research libraries to digitally
copy books and other writings in their collections.
Google has scanned more than 12 million books.

Since then,

It has delivered

digital copies to the participating libraries, created an
electronic database of books, and made text available for online
searching.

See generally Emily Anne Proskine, Google's

Technicolor Dreamcoat: A Copyright Analysis of the Google Book
Search Library Project, 21 Berkeley Tech. L.J. 213, 220-21 (2006)
(describing project).

Google users can search its "digital

-2-

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library" and view excerpts -- "snippets" -- from books in its
digital collection.1
The benefits of Google's book project are many.
will become more accessible.

Books

Libraries, schools, researchers,

and disadvantaged populations will gain access to far more books.
Digitization will facilitate the conversion of books to Braille
and audio formats, increasing access for individuals with
disabilities.

Authors and publishers will benefit as well, as

new audiences will be generated and new sources of income
created.

Older books -- particularly out-of-print books, many of

which are falling apart buried in library stacks -- will be
preserved and given new life.2

1

The term "digital library" apparently first appeared in
the 1980s, see Mary Murrell, Digital + Library: Mass Book
Digitization as Collective Inquiry, 55 N.Y.L. Sch. L. Rev. 221,
230 (2010), although the notion of a "universal library -- the
utopian dream of gathering [] all human knowledge and,
especially, all the books ever written in one place" -- has been
with us for many centuries, id. at 226; see also id. at 226-36
(detailing that history). It is estimated that there are 174
million unique books. (Clancy Decl. ¶ 11, ECF No. 946). The
Republic of Germany reports that certain "European nations have
taken affirmative steps to create a European Digital Library
('Europeana') that balances the needs of authors and publishers
with those of users in a way that meets the interests of both."
(Mem. in Opp'n to ASA of Republic of Germany 2, ECF No. 852
("Germany Mem.")).
2

See, e.g., Matthew Sag, The Google Book Settlement &
the Fair Use Counterfactual, 55 N.Y.L. Sch. L. Rev. 19, 73 (2010)
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Millions of the books scanned by Google, however, were
still under copyright, and Google did not obtain copyright
permission to scan the books.3

As a consequence, in 2005,

certain authors and publishers brought this class action and the
related case, respectively, charging Google with copyright
infringement.

The authors seek both damages and injunctive

relief, and the publishers seek injunctive relief.

Google's

principal defense is fair use under § 107 of the Copyright Act,
17 U.S.C. § 107.
The parties engaged in document discovery and, in the
fall of 2006, began settlement negotiations.

On October 28,

("There is no doubt that approval of the settlement will yield
enormous cultural, intellectual, and educational benefits. It
will expand access to millions of out-of-print books for all
readers; it will also facilitate a revolution in access for
print-disabled persons and users in remote locations without
immediate geographic access to the nation's marquee research
libraries. . . . From the perspective of authors and publishers,
the GBS [Google Book Search] settlement promises new ways to
profit from out-of-print works, as well as the possibility that
increased access will draw in new readers and open up new niche
markets.").
3

"Google proceeded to scan, digitize, and copy books
. . . without attempting to contract with rightsholders
beforehand to obtain rights and licenses to copy in-copyright
books and display portions of them on its website. In doing so,
Google reversed the default copyright arrangement by shifting the
burden to rightsholders to assert their rights." Alessandra
Glorioso, Google Books: An Orphan Works Solution, 38 Hofstra L.
Rev. 971, 992 (2010) (footnotes omitted).
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2008, after extended discussions, the parties filed a proposed
settlement agreement.

The proposed settlement was preliminarily

approved by Judge John E. Sprizzo by order entered November 17,
2008 (ECF No. 64).

Notice of the proposed settlement triggered

hundreds of objections.

As a consequence, the parties began

discussing possible modifications to the proposed settlement to
address at least some of the concerns raised by objectors and
others.

On November 13, 2009, the parties executed the ASA and

filed a motion for final approval of the ASA pursuant to Federal
Rule of Civil Procedure 23(e) (ECF No. 768).

I entered an order

preliminarily approving the ASA on November 19, 2009 (ECF No.
772).
Notice of the ASA was disseminated.

As was the case

with the original proposed settlement, hundreds of class members
objected to the ASA.

A few wrote in its favor.

The Department

of Justice ("DOJ") filed a statement of interest raising certain
concerns (ECF No. 922).

Amici curiae weighed in, both for and

against the proposed settlement.

The Court conducted a fairness

hearing on February 18, 2010.
B.

The ASA
The ASA is a complex document.

not including attachments.

It is 166 pages long,

Article I sets forth 162 definitions,
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including the capitalized terms discussed below.

I will not

describe the ASA in detail, but will summarize its principal
provisions.
The Class consists of all persons (and their heirs,
successors, and assigns) who, as of January 5, 2009, own a U.S.
copyright interest in one or more Books or Inserts4 implicated by
a use authorized by the ASA.

Certain individuals and entities

are excluded.

The Author Sub-Class consists

(ASA § 1.13).

principally of members of the Class who are authors and their
heirs, successors, and assigns.

(ASA § 1.17).

The Publisher

Sub-Class consists of all members of the Class that are
publishing companies that own a U.S. copyright interest in an
Insert or have published a Book.

(ASA § 1.122).

Under the ASA, Google is authorized to (1) continue to
digitize Books and Inserts, (2) sell subscriptions to an
electronic Books database, (3) sell online access to individual
Books, (4) sell advertising on pages from Books, and (5) make
certain other prescribed uses.
ASA § 1.149).

(ASA §§ 3.1, 4.1-4.8; see also

The rights granted to Google are non-exclusive;

4

An Insert includes, for example, a foreword, prologue,
or essay that is independently copyrighted, if certain other
requirements are met. (ASA § 1.75).
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Rightsholders retain the right to authorize others, including
competitors of Google, to use their Books in any way.
§§ 2.4, 3.1(a)).

(ASA

Google will pay to Rightsholders 63% of all

revenues received from these uses, and revenues will be
distributed in accordance with a Plan of Allocation and AuthorPublisher Procedures.

(ASA §§ 2.1-2.4, 4.5, 5.4 & Attachs. A,

C).
The ASA will establish a Book Rights Registry (the
"Registry") that will maintain a database of Rightsholders, and
the Registry will administer distributions of revenues.
§ 6.1(b)).

(ASA

Google will fund the establishment and initial

operations of the Registry with a payment of $34.5 million (which
will also cover the costs of notice to the Class).
§ 2.1(c)).

(ASA

The Registry will be managed by a Board consisting of

an equal number of Author Sub-Class and Publisher Sub-Class
representatives (at least four each).

(ASA § 6.2(b)).

The ASA

will also create an "independent" Unclaimed Works Fiduciary to
represent interests with respect to, and assume responsibility
for certain decisions pertaining to, unclaimed works, including
pricing and book classification.

(ASA §§ 3.2(e)(i), 3.3, 3.10,

4.2(c)(i), 4.3, 4.5(b)(ii), 4.7, 6.2(b)(ii)).

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Rightsholders can exclude their Books from some or all
of the uses listed above, and they can remove their Books
altogether from the database.

At any time Rightsholders can ask

Google not to digitize any Books not yet digitized, and Google
will use "reasonable efforts" not to digitize any such Books.
(ASA §§ 1.124, 3.5(a)(i)).

A Rightsholder may also request

removal from the Registry of a Book already digitized, and Google
is obligated to remove the Book "as soon as reasonably
practicable, but it any event no later than thirty (30) days."
(ASA § 3.5(a)(i)).
As for Books and Inserts digitized before May 5, 2009,
Google will pay $45 million into a Settlement Fund to make Cash
Payments to Rightsholders -- at least $60 per Principal Work, $15
per Entire Insert, and $5 per Partial Insert, for which at least
one Rightsholder has registered a valid claim on or before the
agreed-upon deadline.

(ASA §§ 2.1(b), 13.4; see also Stip. &

Order to Extend Cash Payment Deadline 1-2, Feb. 18, 2011, ECF No.
970).

These are minimum amounts, and if more than $45 million

becomes necessary to pay all eligible claims, Google will provide
additional funds.

If payment of all eligible claims requires

less than $45 million, the Registry will distribute greater
amounts up to a maximum of $300 per Principal Work, $75 per
Entire Insert, and $25 per Partial Insert.
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(ASA § 5.1).

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Going forward, the ASA provides for Google to split
revenues with Rightsholders.

For works covered by the ASA,

Google will pay to the Registry, on behalf of Rightsholders, 70%
of net revenues from sales and advertising; net revenues reflect
a 10% deduction for Google's operating costs.
1.90, 4.5(a)(i)-(ii)).

(ASA §§ 1.89,

Revenue splits can be renegotiated by

individual Rightsholders.

(ASA § 4.5(a)(iii)).

The ASA obligates the Registry to use "commercially
reasonable efforts" to locate Rightsholders.

(ASA § 6.1(c)).

The Registry will receive payments from Google on behalf of
Rightsholders and will in turn distribute them to registered
Rightsholders.

(ASA § 6.1(d)).

Funds unclaimed after five years

may be used, in part, to cover the expense of locating owners of
unclaimed works.

(ASA § 6.3(a)(i)(2)).

After ten years,

unclaimed funds may be distributed to literary-based charities.
(ASA § 6.3(a)(i)(3)).5

5

The States of Connecticut, Massachusetts, Pennsylvania,
Texas, and Washington objected specifically to provisions of the
ASA dealing with unclaimed funds. (See Objection to ASA of
Massachusetts, Pennsylvania & Washington, ECF No. 860; Objection
of Connecticut to ASA, ECF No. 851; Letter from Att'y Gen. of
Tex. to Court (Jan. 27, 2010) (ECF No. 887)). I need not rule on
these objections at this time, as no unclaimed funds yet exist
(see Pls.' Suppl. Mem. Responding to Specific Objections 154-55,
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The ASA distinguishes between in-print (Commercially
Available) and out-of-print (not Commercially Available) Books.
(ASA §§ 1.31, 3.2, 3.3).

Google may not display in-print Books

at all unless and until it receives prior express authorization
from the Books' Rightsholders.

The ASA does give Google the

right to make Non-Display Uses of in-print Books.

(ASA § 3.4).

Google may display out-of-print Books without the prior express
authorization of the Books' Rightsholders, but its right to do so
ceases when and if the Rightsholder directs Google to stop.
C.

The Objections
Approximately 500 submissions were filed commenting on

the ASA and the original proposed settlement.
objected to the ASA.6

The vast majority

Some 6800 class members opted out.

ECF No. 955 ("Pls.' Suppl. Mem.")), and in light of my rulings
below.
6

Plaintiffs argue that the number of objections received
is small when "viewed in light of the size of the Class, which
numbers in the hundreds of thousands, or millions." (Pls.'
Suppl. Mem. 1-2 & n.2, ECF No. 955). Some wrote in support of
the ASA. (See, e.g., Letter from Gregory Crane to Court 1 (Aug.
7, 2009) (ECF No. 898) ("I am writing to support making the
millions of books that Google has digitized reach the widest
possible audience as quickly as possible. . . . This is a
watershed event and can serve as a catalyst for the reinvention
of education, research and intellectual life."); Letter from
Nat'l Fed'n of the Blind to Court 2 (Jan. 19, 2010) (ECF No. 858)
("[I]f this Court approves the settlement, the NFB and its
members, as well as the estimated thirty million Americans who
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(Fairness Hr'g Tr. 166, Feb. 18, 2010 (Michael J. Boni)).

The

major objections are as follows:
1.

Adequacy of Class Notice
Certain objectors contend that class members were given

inadequate notice of the original proposed settlement as well as
of the ASA.

For example, the Science Fiction and Fantasy Writers

of America, Inc., the American Society of Journalists and
Authors, Inc., and certain foreign publisher and authors
associations object to the adequacy of notice.
2.

Adequacy of Class Representation
Certain objectors, including some foreign authors,

academic authors, Insert authors, and others object to the
adequacy of representation, contending that their interests are
at odds with the interests of the representative plaintiffs.
3.

Scope of Relief Under Rule 23
Certain objectors as well as the United States argue

that the ASA will improperly use Rule 23 to shape a "forwardlooking" business arrangement that would release claims not

cannot read print due to other disabilities, will benefit from
unprecedented access to information."); Letter from Publishers
Ass'n to Court 1-2 (Jan. 27, 2010) (ECF No. 825); Letter from
Canadian Publishers' Council to Court (Jan. 27, 2010) (ECF No.
826)).
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before the Court.

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They contend that the case is about the

scanning of books and the display of "snippets," while the ASA
will release claims regarding the display and sale of entire
books.
4.

Copyright Concerns
Certain objectors, including two of Google's major

competitors, Amazon.com, Inc. ("Amazon") and Microsoft Corp.
("Microsoft"), object to the ASA on the grounds it would violate
existing copyright law.

They contend, for example, that judicial

approval of the ASA would infringe on Congress's constitutional
authority over copyright law.

They contend further that the

provisions of the ASA pertaining to "orphan works" would result
in the involuntary transfer of copyrights in violation of the
Copyright Act, as copyrighted works would be licensed without the
owners' consent.
5.

See 17 U.S.C. § 201(e).

Antitrust Concerns
Certain objectors oppose the ASA on antitrust grounds,

arguing that (1) certain pricing mechanisms would constitute
horizontal agreements that would violate the Sherman Act; (2) the
ASA would effectively grant Google a monopoly over digital books,
and, in particular, orphan books; and (3) such a monopoly would

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further entrench Google's dominant position in the online search
business.
6.

Privacy Concerns
Certain objectors, including the Center for Democracy

and Technology and the Electronic Privacy Information Center,
contend that the ASA raises significant privacy issues, as the
digitization of books would enable Google to amass a huge
collection of information, including private information about
identifiable users, without providing adequate protections
regarding the use of such information.
7.

International Law Concerns
Certain foreign authors and entities contend that the

ASA, even with its narrowed coverage of non-U.S. works, would
violate international law by, for example, requiring foreign
rightsholders to determine whether they are covered and therefore
must "opt out," and also by favoring rightsholders from certain
nations.
The parties have submitted detailed responses to all of
the objections.

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DISCUSSION
A.

Applicable Law
Under Rule 23(e) of the Federal Rules of Civil

Procedure, a settlement of a class action requires approval of
the court.

Fed. R. Civ. P. 23(e).

The court may approve a

settlement that is binding on the class only if it determines
that the settlement is "fair, adequate, and reasonable, and not a
product of collusion."

Joel A. v. Giuliani, 218 F.3d 132, 138

(2d Cir. 2000); see Fed. R. Civ. P. 23(e)(2).

This analysis

requires the court to consider both "the settlement's terms and
the negotiating process leading to settlement."

Wal-Mart Stores,

Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116 (2d Cir.), cert.
denied, 125 S. Ct. 2277 (2005).

"A 'presumption of fairness,

adequacy, and reasonableness may attach to a class settlement
reached in arm's-length negotiations between experienced, capable
counsel after meaningful discovery.'"

Id. (quoting Manual for

Complex Litigation (Third) § 30.42 (1995)).
Rule 23(e) does not set forth the factors a court is to
consider in determining whether an agreement is fair, reasonable,
and adequate.

In this Circuit, courts traditionally consider the

following factors, commonly referred to as the Grinnell factors:
(1) the complexity, expense, and likely duration of the
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litigation; (2) the reaction of the class to the settlement; (3)
the stage of the proceedings and the amount of discovery
completed; (4) the risks of establishing liability; (5) the risks
of establishing damages; (6) the risks of maintaining a class
action through trial; (7) the ability of defendants to withstand
greater judgment; (8) the range of reasonableness of the
settlement fund in light of the best possible recovery; and (9)
the range of reasonableness of the settlement fund in light of
the attendant risks of litigation.

City of Detroit v. Grinnell

Corp., 495 F.2d 448, 463 (2d Cir. 1974) (internal citations
omitted), abrogated on other grounds by Goldberger v. Integrated
Res., Inc., 209 F.3d 43 (2d Cir. 2000); see also Wal-Mart Stores,
396 F.3d at 117-19 (applying Grinnell factors in considering
approval of settlement).

The weight given to any particular

factor varies based on the facts and circumstances of the case.
7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure: Civil § 1797.1, at 77 (3d ed. 2005).
Public policy, of course, favors settlement.

Wal-Mart

Stores, 396 F.3d at 116-17; accord Williams v. First Nat'l Bank,
216 U.S. 582, 595 (1910) ("Compromises of disputed claims are
favored by the courts."); TBK Partners, Ltd. v. W. Union Corp.,
675 F.2d 456, 461 (2d Cir. 1982) (noting "the paramount policy of
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encouraging settlements").

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Consequently, when evaluating a

settlement agreement, the court is not to substitute its judgment
for that of the parties, nor is it to turn consideration of the
adequacy of the settlement "into a trial or a rehearsal of the
trial."

Grinnell, 495 F.2d at 462.

"Rather, the Court's

responsibility is to reach an intelligent and objective opinion
of the probabilities of ultimate success should the claims be
litigated and to form an educated estimate of the complexity,
expense and likely duration of such litigation and all other
factors relevant to a full and fair assessment of the wisdom of
the proposed compromise."

In re Met. Life Derivative Litig., 935

F. Supp. 286, 292 (S.D.N.Y. 1996) (quoting Lewis v. Newman, 59
F.R.D. 525, 527-28 (S.D.N.Y. 1973) (internal quotation marks and
ellipsis omitted)).
In this case, the fairness and reasonableness of the
ASA has been challenged on the basis that it would release claims
not properly before the Court.

The Second Circuit has observed

that "[b]road class action settlements are common," and that
consequently "[p]laintiffs in a class action may release claims
that were or could have been pled in exchange for settlement
relief."

Wal-Mart Stores, 396 F.3d at 106.

Circuit has recognized that there are limits.

But the Second

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First, "class

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action releases may include claims not presented and even those
which could not have been presented as long as the released
conduct arises out of the 'identical factual predicate' as the
settled conduct."
460).

Id. at 107 (quoting TBK Partners, 675 F.2d at

Second, the released claims must be adequately represented

prior to settlement, in the sense that "[c]laims arising from a
shared set of facts will not be precluded where class plaintiffs
have not adequately represented the interests of class members."
Id. at 106-07, 110.7
B.

Application
I consider the "settlement's terms" and the

"negotiating process" in the context of discussing the Grinnell

7

In the context of a consent decree resolving a race
discrimination class action, the Supreme Court has identified
similar concerns while addressing the scope of a federal court's
remedial authority. In Local No. 93, Int'l Ass'n of
Firefighters, AFL-CIO C.L.C. v. City of Cleveland (Firefighters),
it held that a consent decree must (1) "spring from and serve to
resolve a dispute within the court's subject-matter
jurisdiction"; (2) "com[e] within the general scope of the case
made by the pleadings"; and (3) "further the objectives of the
law upon which the complaint was based." 478 U.S. 501, 525
(1986) (alteration in original) (internal quotation marks
omitted). Although the consent decree in Firefighters permitted
forward-looking conduct, the conduct was remedial in nature and
was intended to address the harm that was the subject of the
lawsuit, i.e., the past discrimination. The consent decree did
not create new and independent forward-looking business
arrangements.
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factors.

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As the Second Circuit did in Wal-Mart Stores, I combine

certain of the factors and discuss them together.

See 396 F.3d

at 118 (combining fourth, fifth, and sixth factors), 119
(combining eighth and ninth factors).

Of course, I consider also

the objections to the ASA.
As a preliminary matter, I conclude that most of the
Grinnell factors favor approval of the settlement.

The ASA was

the product of arm's length negotiations between experienced,
capable counsel, with assistance from DOJ.

Further litigation

would be complex, expensive, and time-consuming.

Although the

parties have conducted only limited discovery, the case has been
pending for some years.

The legal and factual issues are

complex, and there is a risk that if plaintiffs were to proceed
to trial, they would be unable to establish liability or prove
damages.

As discussed further below, substantial questions exist

as to whether the case could be maintained as a class action, in
its present form, through trial.

In light of the attendant

risks, the financial aspects of the ASA fall well within the
range of reasonableness.
Only two of the Grinnell factors weigh against approval
of the settlement:

the reaction of the class and defendant's

ability to withstand judgment.

As for the latter, there is no
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real risk that a judgment following trial would render Google
insolvent, and thus the avoidance of insolvency is not an issue.
The former, however, is important.

Not only are the objections

great in number, some of the concerns are significant.

Further,

an extremely high number of class members -- some 6800 -- opted
out.

See In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods.

Liab. Litig., 55 F.3d 768, 785, 812 (3d Cir. 1995) (noting that
"the number and vociferousness of the objectors" is a factor to
consider in weighing reasonableness of proposed settlement).

I

turn to the objections now.
1.

Adequacy of Class Notice
The objections to the adequacy of the class notice are

rejected.
notice.

I am satisfied that the class received adequate
More than 1.26 million individual notices in thirty-six

languages were sent directly to copyright owners, potential class
members, and publisher and author associations worldwide.
Suppl. Mem. 36-37, 54-60, ECF No. 955).

(Pls.'

Plaintiffs also

established a website to provide information about the case, the
original proposed settlement, and the ASA.

Of course, the case

has received enormous publicity, and it is hard to imagine that
many class members were unaware of the lawsuit.

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(But see

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Objections of Wash. Legal Found. to ASA & Class Certification,
ECF No. 901 (objecting to notice)).
2.

Adequacy of Class Representation
The adequacy of representation inquiry considers

whether "1) plaintiff's interests are antagonistic to the
interest of other members of the class and 2) plaintiff's
attorneys are qualified, experienced and able to conduct the
litigation."

Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp.,

222 F.3d 52, 60 (2d Cir. 2000).

Here, representative plaintiffs

are represented by counsel highly experienced in class action and
copyright litigation.

I am confident that they are qualified,

experienced, and able to conduct the litigation.
As to the first prong of the analysis, however, as
discussed below, I conclude that there is a substantial question
as to the existence of antagonistic interests between named
plaintiffs and certain members of the class.

See Amchem Prods.,

Inc. v. Windsor, 521 U.S. 591, 595 (1997) ("[T]he settling
parties achieved a global compromise with no structural assurance
of fair and adequate representation for the diverse groups and
individuals affected.").

While it is true, as plaintiffs argue,

that "differences in views or characteristics between class
members do not mean the Class has not been adequately
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represented" (Pls.' Suppl. Mem. 24, ECF No. 955), the differences
here are troubling.
3.

Scope of Relief Under Rule 23
The ASA can be divided into two distinct parts.

The

first is a settlement of past conduct and would release Google
from liability for past copyright infringement.

The second would

transfer to Google certain rights in exchange for future and
ongoing arrangements, including the sharing of future proceeds,
and it would release Google (and others) from liability for
certain future acts.
10.2(a)).8

(See, e.g., ASA §§ 10.1(f), 10.1(g),

I conclude that this second part of the ASA

contemplates an arrangement that exceeds what the Court may
permit under Rule 23.

As articulated by the United States, the

ASA "is an attempt to use the class action mechanism to implement
forward-looking business arrangements that go far beyond the
dispute before the Court in this litigation."

8

(DOJ Statement of

The United States is of the view that the first part of
the settlement -- settling claims for past infringement based on
digitization for use of snippets -- is a matter that is
appropriately settled in this case, while the second part -- the
series of forward-looking commercial arrangements -- is not.
(Hr'g Tr. 117-18 (William Cavanaugh)).
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Interest 2, Feb. 4, 2010, ECF No. 922 ("DOJ SOI")).9

Moreover,

the Rules Enabling Act provides that the rules of procedure
"shall not abridge, enlarge or modify any substantive right."
U.S.C. § 2072(b).

As the Supreme Court noted in Amchem:

28

"Rule

23 . . . must be interpreted with fidelity to the Rules Enabling
Act and applied with the interests of absent class members in
close view."

521 U.S. at 629.

Although I am persuaded that the parties are seeking in
good faith to use this class action to create an effective and
beneficial marketplace for digital books, I am troubled in
several respects.
a.

A Matter for Congress

First, the establishment of a mechanism for exploiting
unclaimed books is a matter more suited for Congress than this
Court.

The ASA would create, for example, the Registry and the

Fiduciary.

Together, they would represent -- purportedly on an

independent basis -- the interests of Rightsholders, including
those who have not registered but are covered merely because they
did not opt out.

9

But see Uhl v. Thoroughbred Tech. & Telecomm., Inc.,
309 F.3d 978 (7th Cir. 2002) (affirming approval of settlement of
class action based on forward-looking business arrangement).
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The questions of who should be entrusted with
guardianship over orphan books, under what terms, and with what
safeguards are matters more appropriately decided by Congress
than through an agreement among private, self-interested parties.
Indeed, the Supreme Court has held that "it is generally for
Congress, not the courts, to decide how best to pursue the
Copyright Clause's objectives."

Eldred v. Ashcroft, 537 U.S.

186, 212 (2003); accord Sony Corp. of Am. v. Universal City
Studios, Inc., 464 U.S. 417, 429 (1984) ("[I]t is Congress that
has been assigned the task of defining the scope of the limited
monopoly that should be granted to authors or to inventors in
order to give the public appropriate access to their work
product.").10

In Sony, the Supreme Court noted that it was

Congress's responsibility to adapt the copyright laws in response
to changes in technology:
From its beginning, the law of copyright has
developed in response to significant changes
in technology. Indeed, it was the invention
of a new form of copying equipment -- the
printing press -- that gave rise to the
original need for copyright protection.

10

See also Amchem Prods., 521 U.S. at 628-29 ("The
argument is sensibly made that a nationwide administrative claims
processing regime would provide the most secure, fair, and
efficient means of compensating victims of asbestos exposure.
Congress, however, has not adopted such a solution.").
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Repeatedly, as new developments have occurred
in this country, it has been the Congress
that has fashioned new rules that new
technology made necessary.
464 U.S. at 430-31 (footnotes omitted).
In fact, Congress has made "longstanding efforts" to
enact legislation to address the issue of orphan works.
(Objections of Microsoft to ASA & Certification of Class 4-5 &
nn.10-11, ECF No. 874 (quoting Statement of Marybeth Peters)).
"Orphan Books" legislation was proposed in Congress in 2006 and
2008, but the proposed laws were not enacted.

See Glorioso,

supra n.3, at 980 (reviewing proposed legislation).
As discussed below, the ASA would also raise
international concerns, and foreign countries, authors, and
publishers have asserted that the ASA would violate international
law.

For this reason as well, the matter is better left for

Congress.
b.

The Scope of the Pleadings

Second, the ASA would release claims well beyond those
contemplated by the pleadings.

This case was brought to

challenge Google's use of "snippets," as plaintiffs alleged that
Google's scanning of books and display of snippets for online
searching constituted copyright infringement.

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arguing that it was permitted by the fair use doctrine to make
available small portions of such works in response to search
requests.

There was no allegation that Google was making full

books available online, and the case was not about full access to
copyrighted works.

The case was about the use of an indexing and

searching tool, not the sale of complete copyrighted works.
The parties argue that the pleadings are not limited to
plaintiffs' claims with respect to the display of snippets,
citing the Third Amended Complaint.

(Pls.' Suppl. Mem. 33-34,

ECF No. 955 (quoting Third Am. Compl. ¶¶ 4-8, 60, ECF No. 782)).
While it is true that the pleadings refer to broader conduct
(including the creation of "digital copies" of books (Third Am.
Compl. ¶ 4, ECF No. 782; see also Hr'g Tr. 158-59 ("When the
publishers sued, they sued for the intial act of scanning our
books without permission, cover to cover.

We were not so

concerned about what uses were made.") (Bruce P. Keller))), the
copying and display of copyrighted material occurred in the
context of "Google Book Search," which "is designed to allow
users to search the text of books online.

The digital archiving

of the Books that are the subject of this lawsuit was undertaken
by Google as part of Google Book Search."

(Third Am. Compl.

¶ 41, ECF No. 782; see also id. ¶ 55 (describing Google's
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agreements with four university libraries and one public library
"to 'digitally scan books from their collections so that users
worldwide can search them in Google'")).
Google did not scan the books to make them available
for purchase, and, indeed, Google would have no colorable defense
to a claim of infringement based on the unauthorized copying and
selling or other exploitation of entire copyrighted books.11
Yet, the ASA would grant Google the right to sell full access to
copyrighted works that it otherwise would have no right to
exploit.12

The ASA would grant Google control over the digital

commercialization of millions of books, including orphan books

11

Counsel for Google acknowledged at the fairness hearing
that Google would not have tried to defend digitizing and selling
entire books. (Hr'g Tr. 150 (Daralyn J. Durie)).
12

Certain authors note, for example, that the ASA would
release other intellectual property claims that were never
asserted in the case. (Objections of Arlo Guthrie et al. to
Proposed Class Action Settlement Agreement 14, ECF Nos. 209,
849-2 ("This expansive release [ASA § 10.1(f)] bars class members
from protecting their most fundamental intellectual property
rights, including for example the trademark interests of
Catherine Ryan Hyde [to the mark Pay It Forward]. . . .
Moreover, the release would preclude authors from pursuing any
number of other claims commonly associated with full protection
of their intellectual property rights -- including for example
right of publicity, disparagement, and tortious interference
claims -- that also were not alleged.")).
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and other unclaimed works.13

Filed 03/22/11 Page 27 of 48

And it would do so even though

Google engaged in wholesale, blatant copying, without first
obtaining copyright permissions.

While its competitors went

through the "painstaking" and "costly" process of obtaining
permissions before scanning copyrighted books, "Google by
comparison took a shortcut by copying anything and everything
regardless of copyright status."
counsel for Microsoft)).

(Hr'g Tr. 43 (Thomas Rubin,

As one objector put it:

"Google

pursued its copyright project in calculated disregard of authors'
rights.

Its business plan was:

'So, sue me.'"

(Objection of

Robert M. Kunstadt to Proposed Settlement 3, ECF No. 74).14

13

As articulated by the academic authors objecting to the
ASA: "The Google Book Search (GBS) initiative envisioned in the
[ASA] is not a library. It is instead a complex and large-scale
commercial enterprise in which Google -- and Google alone -- will
obtain a license to sell millions of books for decades to come."
(Letter from Pamela Samuelson to Court (Jan. 27, 2010) (ECF No.
893) ("Samuelson Letter")).
14

Some objectors accused Google of engaging in piracy.
(See, e.g., Letter from Erika Faith Larsen to Court 1 (Jan. 27,
2010) (ECF No. 818) ("I am opting out because I believe this to
be a copyright infringement and a form of pirating."); Letter
from William Ash to Court 1 (Jan. 12, 2010) (ECF No. 884)
("Google . . . is trying to benefit by weakening copyright. It
seems to first want to do this with 'orphaned' works based on the
shady practice of stealing by finding. . . . Google is trying to
legalize piracy.")).
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Applying Firefighters, I conclude that the released
claims would not come within "the general scope of the case made
by the pleadings."

478 U.S. at 525.15

Applying Wal-Mart Stores,

I conclude that the released conduct would not arise out of the
"identical factual predicate" as the conduct that is the subject
of the settled claims.
c.

396 F.3d at 107 (citation omitted).

The Interests of Class Members

Third, the class plaintiffs have not adequately
represented the interests of at least certain class members.
Wal-Mart Stores, 396 F.3d at 106-07, 110.

See

The academic author

objectors, for example, note that their interests and values
differ from those of the named plaintiffs:

"Academic authors,

almost by definition, are committed to maximizing access to

15

As for the third prong of the Firefighters test,
supporters of the proposed settlement argue that it would
"serve[] copyright law's central purpose of advancing knowledge
and culture by furthering copyright's social utility and social
justice goals through inclusion of those who have been excluded.
The Google Books Project furthers these goals by using an
accepted copyright mechanism (i.e., a private, court-supervised
settlement) to address the novel copyright problems presented by
the new technologies, while still preserving the rights of
copyright holders." Lateef Mtima & Steven D. Jamar, Fulfilling
the Copyright Social Justice Promise: Digitizing Textual
Information, 55 N.Y.L. Sch. L. Rev. 77, 79-80 (2010); see Harper
& Row Pubs., Inc. v. Nation Enters., 471 U.S. 539, 545 (1985)
("[C]opyright is intended to increase and not to impede the
harvest of knowledge."). As discussed below, however, the ASA
raises significant copyright concerns as well.
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knowledge.

Filed 03/22/11 Page 29 of 48

The [Authors] Guild and the [Association of American

Publishers], by contrast, are institutionally committed to
maximizing profits."

(Samuelson Letter 3 (ECF No. 893)).16

In

addition, the class representatives have interests that may be at
odds, at least in part, with interests of foreign Rightsholders,
as discussed below.

Likewise, the named plaintiffs have

interests different from Rightsholders who do not come forward to
register.

The parties have little incentive to identify and

locate the owners of unclaimed works, as fewer opt-outs will mean
more unclaimed works for Google to exploit.17
Plaintiffs argue that in "virtually every class action
settlement, a percentage (often a high percentage) of class
members does not file claims or otherwise participate but,
nevertheless, their claims are released.

From a Rule 23

perspective, there is no more an 'orphan' problem here than in
any other class action settlement in which less than 100% of the

16

Many academic authors, for example, would prefer that
orphan books be treated on an "open access" or "free use" basis
rather than one where they would be controlled by one private
entity. (See Hr'g Tr. 55-57 (Pamela Samuelson)).
17

Plaintiffs contend that "one of the Registry's core
missions is to locate Rightsholders of unclaimed out-of-print
books . . . . The Registry will strive to locate the
Rightsholders of unclaimed Books." (Pls.' Suppl. Mem. 21, ECF
No. 955).
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class participates."
disagree.

Filed 03/22/11 Page 30 of 48

(Pls.' Suppl. Mem. 3-4, ECF No. 955).

I

While it is true that in virtually every class action

many class members are never heard from, the difference is that
in other class actions class members are merely releasing
"claims" for damages for purported past aggrievements.

In

contrast, here class members would be giving up certain property
rights in their creative works, and they would be deemed -- by
their silence -- to have granted to Google a license to future
use of their copyrighted works.
4.

Copyright Concerns
As alluded to above, the Copyright Clause of the

Constitution grants Congress the power "[t]o promote the Progress
of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective
Writings and Discoveries."

U.S. Const. art. I, § 8, cl. 8.

The

Supreme Court has recognized that courts should encroach only
reluctantly on Congress's legislative prerogative to address
copyright issues presented by technological developments:

"Sound

policy, as well as history, supports our consistent deference to
Congress when major technological innovations alter the market
for copyrighted materials."

Sony, 464 U.S. at 431.

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The ASA raises statutory concerns as well.

Certain

objectors contend that the ASA's opt-out provisions would grant
Google the ability to expropriate the rights of copyright owners
who have not agreed to transfer those rights.
Objection of Amazon to ASA 9, ECF No. 823).
have merit.

(See, e.g.,
The argument may

The Copyright Act provides:

When an individual author's ownership of a
copyright, or any of the exclusive rights
under a copyright, has not previously been
transferred voluntarily by that individual
author, no action by any governmental body or
other official or organization purporting to
seize, expropriate, transfer, or exercise
rights of ownership with respect to the
copyright, or any of the exclusive rights
under the copyright, shall be given effect
under this title, except as provided under
title 11.
17 U.S.C. § 201(e).

Yet, the ASA proposes to expropriate rights

of individuals involuntarily.
Plaintiffs argue that § 201(e) was enacted to prevent
governmental suppression of copyrights and that it does not apply
to private parties.

(Pls.' Suppl. Mem. 113, ECF No. 955 (citing,

e.g., In re Peregrine Entm't, Ltd., 116 B.R. 194, 206 n.16 (C.D.
Cal. 1990))).

The statute, however, refers to "any governmental

body or other official or organization," and at a minimum a fair
question exists as to whether this Court or the Registry or the

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Fiduciary would be expropriating copyright interests belonging to
authors who have not voluntarily transferred them.
Nimmer has written:

As Professor

"By its terms Section 201(e) is not limited

to acts by governmental bodies and officials.

It includes acts

of seizure, etc., by any 'organization' as well."

3 Melville B.

Nimmer & David Nimmer, Nimmer on Copyright § 10.04 (Rev. Ed.
2010) (footnote omitted).

In any event, I need not decide the

precise question of whether the ASA would in fact violate
§ 201(e); the notion that a court-approved settlement agreement
can release the copyright interests of individual rights owners
who have not voluntarily consented to transfer is a troubling
one.

See also 17 U.S.C. § 106(1), (3) ("[T]he owner of copyright

under this title has the exclusive rights to do and to authorize
any of the following: . . . reproduce the copyrighted work . . .
[and] distribute copies . . . of the copyrighted work to the
public by sale or other transfer of ownership.") (emphasis
added).
A copyright owner's right to exclude others from using
his property is fundamental and beyond dispute.

See Fox Film

Corp. v. Doyal, 286 U.S. 123, 127 (1932) ("The owner of the
copyright, if he pleases, may refrain from vending or licensing
and content himself with simply exercising the right to exclude
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others from using his property.").

Filed 03/22/11 Page 33 of 48

As counsel for Amazon argued:

"[T]he law of the United States is a copyright owner may sit
back, do nothing and enjoy his property rights untrammeled by
others exploiting his works without permission."
(David Nimmer)).

(Hr'g Tr. 46-47

Under the ASA, however, if copyright owners sit

back and do nothing, they lose their rights.

(See id. at 47).

Absent class members who fail to opt out will be deemed to have
released their rights even as to future infringing conduct.
"Copyright owners who are not aware that the [ASA] affects their
interest unknowingly leave Google to decide how their books are
used."

Glorioso, supra n.3, at 992.
Many objectors highlighted this concern in their

submissions to the Court.
states, very simply:

An author from the United Kingdom

"I do not want my books to be digitized."

(Letter from Tony Peake to Settlement Administrator 1 (Dec. 24,
2009) (ECF No. 821)).

A 79-year old nature writer and author of

23 books illustrated with photographs of animals in the wild
worries that the loss of control over her works could result in
their being used to "vilif[y] the wildlife I spent my life trying
to help the public come to understand and protect."

(Letter from

Hope Ryden to Court 1 (Apr. 17, 2009) (ECF No. 84)).

An author

from Canada writes:

"I am opting out because I believe in the
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integrity of copyright.

Filed 03/22/11 Page 34 of 48

I believe that only I, myself, should

have the right to determine how my work can be used."

(Letter

from Dina E. Cox to Court 1 (Jan. 19, 2010) (ECF No. 783)).
Finally, an author from Texas gives the example of her
grandfather.

He self-published a memoir, Dust and Snow, in 1988.

He passed away in the 1990s, and the copyright to the book passed
to his three daughters.

The author observes:

From Google's point of view, Dust and
Snow is an "orphaned" book. If and when
Google scans it, the company is likely to be
unsuccessful in trying to locate the
publisher, since the book was self-published
and my grandfather is now deceased. In
essence, the way the settlement is written,
such "orphaned" titles are automatically
handed to Google free of charge to do with as
it will.
From my family's point of view, Dust and
Snow is not orphaned at all. It is very
clear who owns the copyright. So why is
Google being granted the automatic right to
take over the copyright of books like my
grandfather's?
(Letter from Margaret Jane Ross to Court 2 (Jan. 20, 2010) (ECF
No. 787)).
While the named plaintiffs and Google would argue that
these authors can simply opt out (see Hr'g Tr. 144 (Daralyn J.
Durie)), the comments underscore certain points.

First, many

authors of unclaimed works undoubtedly share similar concerns.
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Second, it is incongruous with the purpose of the copyright laws
to place the onus on copyright owners to come forward to protect
their rights when Google copied their works without first seeking
their permission.18

Third, there are likely to be many authors

-- including those whose works will not be scanned by Google

18

In one submission, two literary agents expressed this
concern eloquently:
By accepting this settlement, the court will
be setting a highly questionable precedent,
usurping the role of the legislature by
creating a legal loophole for one corporation
and reversing the very foundation of
copyright protection. We who have devoted
our lives to assisting the work of creative
individuals are left with a sense of moral
indignation. We have pledged, in our
contracts with clients, to sell or license
their rights to ethically and financially
sound purchasers and licensees. And for many
years we have toiled over agreements and
contracts to accomplish this, aided by the
protections of the law. The situation we
find ourselves in now is one of dismay and
powerlessness, with only the weak ability to
"object" or opt out. We beseech you to give
authors back their rights. Force Google to
negotiate like any other publisher. And let
us get back to work.
(Letter from Stuart Bernstein & Susan Bergholz to Court 3-4 (Jan.
26, 2010) (ECF No. 888)).
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until some years in the future -- who will simply not know to
come forward.19
5.

Antitrust Concerns
The United States, Amazon, and Microsoft, among others,

raise a number of antitrust concerns presented by the ASA.
The ASA would give Google a de facto monopoly over
unclaimed works.

Only Google has engaged in the copying of books

en masse without copyright permission.
922; Hr'g Tr. 43 (Thomas Rubin)).

(See DOJ SOI 21, ECF No.

As the United States observed

in its original statement of interest:
This de facto exclusivity (at least as to
orphan works) appears to create a dangerous
probability that only Google would have the
ability to market to libraries and other
institutions a comprehensive digital-book
subscription. The seller of an incomplete
database -- i.e., one that does not include
the millions of orphan works -- cannot
compete effectively with the seller of a
comprehensive product.
(DOJ Statement of Interest 24, Sept. 18, 2009, ECF No. 720).

And

as counsel for the Internet Archive noted, the ASA would give
Google "a right, which no one else in the world would have, . . .

19

Google notes that under the ASA -- and unlike in other
class actions -- class members retain "the right to change their
mind. They can pull their books from the program at any point in
time in the future." (Hr'g Tr. 152 (Daralyn J. Durie)).
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to digitize works with impunity, without any risk of statutory
liability, for something like 150 years."

(Hr'g Tr. 95 (Hadrian

Katz)).
The ASA would arguably give Google control over the
search market.

(See, e.g., Suppl. Mem. of Open Book Alliance in

Opp'n to ASA 14-19, ECF No. 840).

The ASA would permit third

parties to display snippets from books scanned by Google, but
only if they "have entered into agreements with Google."
§ 3.9).

(ASA

Likewise, the ASA would permit third parties to "index

and search" scanned books only if they are non-commercial
entities or they otherwise have Google's prior written consent.
(ASA §§ 1.123, 1.93(e), 7.2(b)).

The ASA would broadly bar

"direct, for profit, commercial use of information extracted from
Books in the Research Corpus" except with the express permission
of the Registry and Google.

(ASA § 7.2(d)(viii)).

Google's

ability to deny competitors the ability to search orphan books
would further entrench Google's market power in the online search
market.

Cf. United States v. Griffith, 334 U.S. 100, 109 (1948)

(holding that owners of movie theaters with monopoly power in
certain towns violated § 2 of Sherman Act by obtaining exclusive
licensing agreements for first-run films, allowing them to

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foreclose competition and establish monopolies in more towns).20
(See Mem. of Internet Archive in Opp'n to ASA 3-4, ECF No. 811
("Internet Archive Mem.") ("Google would have the right to make
complete copies of orphan works and use them for both display and
non-display purposes, with no risk of copyright liability.
Competitors that attempted to do the same thing, however, would
face exposure to statutory damages.")).

20

Nor is it merely Google's competitors that have raised
antitrust concerns. For example, amicus curiae Public Knowledge,
a non-profit public interest organization "devoted to preserving
the free flow of information in the digital age," objects that
the ASA would grant Google "a monopoly in the market for orphan
books." (Br. of Pub. Knowledge in Opp'n to ASA 2, ECF No. 895).
It argues that "public access to orphan books must be open to all
comers on a level playing field." (Id.). In addition, the
Institute for Information Law and Policy at New York Law School
argues:
The heart of the [ASA] is that it would give
Google a license to sell complete copies of
out-of-print books unless their copyright
owners object. It is all but certain that
many orphan copyright owners will be unable
to object. This sweeping default license
will operate only in Google's favor,
instantly giving it a dominant market
position.
(Letter from Inst. for Info. Law & Policy to Court 5 (Jan. 28,
2010) (ECF No. 856)).
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6.

Filed 03/22/11 Page 39 of 48

Privacy Concerns
The Consumer Watchdog, Privacy Authors and Publishers,

and others raise privacy concerns.

The Consumer Watchdog argues

that the ASA would give Google "the ability to collect nearly
unlimited data about the activities of users of its Book Search
and other programs, including users' search queries, the identity
of books a particular user reads, how long that reader spends on
each book, and even what particular pages were read."

(Second

Br. of Consumer Watchdog in Opp'n to ASA 11, ECF No. 841).

These

objectors contend that the ASA fails to provide adequate
protections for users of Google Book Search.

(Id. at 11-12;

Privacy Authors & Publishers' Objection to Proposed Settlement
16, ECF No. 281).

They contend that the ASA fails to follow

established law that protects reader privacy by limiting the
disclosure of reader information.

(Privacy Authors & Publishers'

Objection to Proposed Settlement 16-20, ECF No. 281 (citing case
law and state statutes)).
The privacy concerns are real.

Yet, I do not believe

that they are a basis in themselves to reject the proposed
settlement.

The ASA provides that contact information provided

by Class members to the Registry will not be disclosed to Google
or the public if the Class member so requests.
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§ 6.6(c)(iii), (d)).

Filed 03/22/11 Page 40 of 48

It also provides that Google shall maintain

in confidence any Rightsholder's personally identifiable
information received in connection with the settlement.
§ 6.6(f)).

(ASA

Google has "committed" to certain safeguards (Def.'s

Br. in Supp. of Approval of ASA 55-56, ECF No. 941), although
these are voluntary undertakings only.

I would think that

certain additional privacy protections could be incorporated,
while still accommodating Google's marketing efforts.
7.

International Law Concerns
The original settlement included any book subject to a

U.S. copyright interest as of the Notice Commencement Date.

That

definition would have included all books published after 1989 in
any country that is a signatory to the Berne Convention because
the Berne Convention guarantees that foreign authors be given the
same rights and privileges for their works as domestic authors.
As the United States signed onto the Berne Convention in 1988,
and it became effective in 1989, foreign books are covered by
U.S. copyright protection (regardless of formal registration)
after the effective date.
The ASA narrowed the definition so that any non-"United
States work," see 17 U.S.C. § 101, is covered only if the
copyright was affirmatively registered in Washington, D.C. or if
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the Book was published in Canada, the United Kingdom, or
Australia, on or before January 5, 2009 (ASA § 1.19).

Plaintiffs

also added "six non-U.S. based Representative Plaintiffs who
fairly and adequately represent the interests of Class members
whose Books and Inserts were published in the U.K., Canada or
Australia."

(Pls.' Suppl. Mem. 25, ECF No. 955).

Foreign rightsholders remain concerned, however,
because many foreign books were registered in the United States
to ensure coverage under U.S. law, especially those registered
before 1989.

(See, e.g., Germany Mem. 2-3, ECF No. 852; Suppl.

Decl. of French Republic 2, ECF No. 853; Objections of Carl
Hanser Verlag et al. 1-2, ECF No. 868 (publishing and author
associations in Germany, Switzerland, Austria, Italy, and New
Zealand); Letter from Literar Mechana to Court 1 (Jan. 18, 2010)
(ECF No. 797)).

VG Wort, a German "collecting society"

representing authors and publishers of literary works and the
fiduciary owner of some 380,000 German authors and 9000 German
publishers, notes that many foreign copyright owners remain
members of the class because they registered their works with the
U.S. Copyright Office.

(Letter from VG Wort to Court 3-4 (Jan.

21, 2010) (ECF No. 857)).

Indeed, France and Germany, as well as

many authors and publishers from countries such as Austria,
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Belgium, India, Israel, Italy, Japan, New Zealand, Spain, Sweden,
Switzerland, and the United Kingdom continue to object to the
ASA, even with the revisions.
Many foreign objectors express concern as to whether
the ASA would violate international law, including the Berne
Convention and the Agreement on Trade-Related Aspects of
Intellectual Property Rights.

Indian authors and publishers, for

example, object that the ASA "continues to provide Google with
sweeping rights to exploit works of Indian authors/publishers
under copyright protection without their express
permission/consent, a violation of international and Indian
copyright laws."
807).

(Objections of Niyogi Books et al. 1, ECF No.

An association of Canadian university teachers asserts

that the ASA would "put[] the United States in violation of
international intellectual property law and specifically in
violation of trade agreements among Canada, the United States,
and other parties as those agreements relate to copyright."
(Letter from Canadian Ass'n of Univ. Teachers to Court 2 (Jan.
28, 2010) (ECF No. 900)).

The Japan P.E.N. Club, an organization

consisting of poets, playwrights, essayists, editors, and
novelists in Japan, also opposes approval of the ASA, arguing
that the settlement would give Google "an almost insurmountable
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market advantage worldwide in the world of digital book
publishing, while granting it a monopoly at home in the United
States and other English-speaking countries."

(Japan P.E.N. Club

Amicus Curiae Br. in Opp'n to ASA 6, ECF No. 848-2).
Google responds that "this case is about United States
copyright interests.
States."

It's about uses of works in the United

(Hr'g Tr. 157-58 (Daralyn J. Durie)).

This argument,

however, ignores the impact the ASA would have on foreign
rightsholders.

In any event, I need not decide whether the ASA

would violate international law.

In light of all the

circumstances, it is significant that foreign authors,
publishers, and, indeed, nations would raise the issue.
A number of foreign objectors also complain that it was
difficult for foreign authors to determine whether they were
covered by the ASA.

(See, e.g., Germany Mem. 6-7, ECF No. 852;

Letter from Centro Español de Derechos Reprográficos to Court 1
(Jan. 22, 2010) (ECF No. 827); Letter from Irish Copyright
Licensing Agency Ltd. to Court 1 (Jan. 26, 2010) (ECF No. 881);
Letter from Assucopie to Court 1 (Jan. 22, 2010) (ECF No.
882)).21

Works registered in the Copyright Office before 1978,

21

There was some support for approval of the ASA from
Australia, Canada, and the United Kingdom (see, e.g., Letter from
Publishers Ass'n to Court 1 (Jan. 27, 2010) (ECF No. 825) (United
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for example, are not included in the online directory, and until
recently the only way such foreign rightsholders could search the
Copyright Office records was to do so in person in Washington,
D.C., or by commissioning a member of the Copyright Office staff
to conduct a search for a fee of $330.

(Objections of Carl

Hanser Verlag et al. 12, ECF No. 868).
In addition, certain foreign objectors emphasize that
the problem of orphan books is a global one.

As Germany notes:

"Courts and class action settlements are not the proper province
for creating a cutting edge copyright . . . framework to bind
future generations and impact global competition for the future
of digital libraries."

(Germany Mem. 11, ECF No. 852).

Likewise, France argues:
Concerning «Unclaimed books», national laws
on «orphan» or «unclaimed» books in the
digital age are now being elaborated in many
countries. Each nation, pursuant to its own
governing laws and structure, is the only
actor with sufficient legitimacy to make
Kingdom); Letter from Canadian Publishers' Council to Court 1
(Jan. 27, 2010) (ECF No. 826); Letter from Australian Publishers
Ass'n to Court 1 (Jan. 28, 2010) (ECF No. 830); Letter from Soc'y
of Authors to Court 1-2 (Jan. 22, 2010) (ECF No. 876) (United
Kingdom)), although not everyone from those countries agreed
(see, e.g., Letter from Diana Kimpton to Court 1 (Jan. 10, 2010)
(ECF No. 817) (United Kingdom); Letter from Jenny Darling &
Assocs. to Court 1 (Jan. 22, 2010) (ECF No. 886) (Australia);
Letter from Canadian Ass'n of Univ. Teachers to Court 1 (Jan. 28,
2010) (ECF No. 900)).
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decisions that affect Copyright. France
considers that, in the meantime, any digital
exploitation of books must abide by the
international principles of copyright and, in
particular, the prior consent of the rights
holders.
(Suppl. Decl. of French Republic 2, ECF No. 853).

The fact that

other nations object to the ASA, contending that it would violate
international principles and treaties, is yet another reason why
the matter is best left to Congress.22
CONCLUSION
In the end, I conclude that the ASA is not fair,
adequate, and reasonable.

22

As the United States and other

Germany further argues as follows:
The [ASA] still rewards Google -- a serial
scanning infringer -- with a de facto
exclusive license regarding copyrights held
by authors for books published in the United
States, Canada, Australia, and United
Kingdom, as well as over German and other
international authors whose books have been
registered in the United States. Competing
digital libraries in Germany ("Deutsche
Digitale Bibliothek") and throughout the
world do not enjoy rights to such authors or
"Orphan Works" because Germany requires
licensing of rights prior to the usage of
Orphan Works. Such a sweeping de facto
compulsory license system would require
legislative action (equivalent to
Congressional action) in Germany.

(Germany Mem. 8, ECF No. 852).
-45-

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Case 1:05-cv-08136-DC Document 971

Filed 03/22/11 Page 46 of 48

objectors have noted,
of the concerns raised in the
objectors have noted, many of the concerns raised in the
objections
be ameliorated if the
were converted from an
objections would be ameliorated if the ASA were converted from an
I1opt-out1!
settlement to an llopt-in"settlement.
"opt-out" settlement to an "opt-in" settlement.

(See, e.q.,
( See Ie. g., DOJ

SO1 23,
Mem. 10,
SOl 23, ECF No. 922; Internet Archive Mem. 10, ECF No. 811).
No. 922; Internet
No. 811).

I
I

urge the parties to consider revising the
urge the parties to consider revising the ASA accordingly.
accordingly.
The
The motion for final approval of the ASA is denied,
for final approval of the
is denied,
without
to renewal in the event the parties negotiate a
without prejudice to renewal in the event the parties negotiate a
revised settlement agreement.
revised settlement agreement.

The motion for an award of
The
for an award of

attorneys1 fees and costs is denied, without prejudice.
attorneys' fees and costs is denied, without prejudice.
The Court will
a status conference on April 25,
The Court will hold a status conference on April 25,
2011, at 4:30 p.m., in
11A of the Daniel Patrick
2011, at 4:30 p.m., in Courtroom 11A of the Daniel Patrick

Moynihan Courthouse.
Courthouse.
SO ORDERED.
SO ORDERED.
Dated:
Dated:

March 22, 2011
22, 2011
York,
New York, New York
York

c

//~c~

1
---

DENNY CHIN
United States Circuit Judge
United States Circuit Judge
Sitting By Designation
Sitting

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APPEARANCES
For Author Plaintiffs:
BONI & ZACK LLC
By: Michael J. Boni, Esq,
Joanne Zack, Esq.
15 St. Asaphs Road
Bala Cynwyd, PA 19004

For Publisher Plaintiffs:
DEBEVOISE & PLIMPTON LLP
By: Bruce P. Keller, Esq.
Jeffrey P. Cunard
Richard S. Lee, Esq.
919 Third Avenue
New York, NY 10022

For Defendant Google Inc.
DURIE TANGRI LLP
By: Daralyn J. Durie, Esq.
Joseph C. Gratz, Esq.
217 Leidesdorff Street
San Francisco, CA 94111

For United States of America:
PREET BHARARA, Esq.
United States Attorney
for the Southern District of New York
By: John D. Clopper, Esq.
Owen Knedler, Esq.
Assistant United States Attorneys
86 Chambers Street, 5th Floor
New York, NY 10007
- and -

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WILLIAM F. CAVANAUGH, Esq.
Deputy Assistant Attorney General
Antitrust Division, U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001

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Filed 10/14/11 Page 1 of 16

Michael J. Boni (pro hac vice)
Michael J. Boni (pro hac vice)
JoanneZack
Joane Zack
BONI & ZACK LLC
BONI & ZACK LLC
15
Asaphs Road
15 St. Asaphs Road
Bala Cynwyd, A 19004
Bala Cynwyd, P A 19004
[phone] (phone)
(6 i 0) 822-0200 (phone)
[phone] (fax)
[phone] (fax)
[e-mail]
MBoniêbonizack.com
[e-mail]
JZackêbonizack.com

UNITED STATES DISTRICT COURT
UNITED STATES DISTRICT COURT
OF NEW
SOUTHERN DISTRICT OF NEW YORK

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

_ _ _ _ _ _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x

Guild, Inc.,
Plaintiff,
The Authors Guild, Inc., Associational Plaintiff,
Herbert Mitgang, Betty Miles, Daniel Hoffinan, Paul
Mitgang, Betty Miles, Daniel Hoffian, Paul
and
Dickson, Joseph Goulden, and Jim Bouton,
behalf of
individually and on behalf of all others similarly
situated,

FOURTH AMENDED CLASS
FOURTH AMENDED
ACTION COMPLAINT

Plaintiffs,

Case No. 05 CV 8136-DC

v.

JURY TRIAL DEMANDED
TRIAL DEMANDED

Google Inc.,
Defendant.

--------x
- - - - - - - -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- ----------------- -- -- -- -- ---x
Plaintiffs, by their attorneys, allege as follows:
Plaintiffs,
follows:
NATURE OF THE ACTION
NATURE OF THE ACTION
1.
1.

Plaintiffs are published authors and The Authors Guild, Inc. ("Authors
Plaintiffs are published authors and The Authors Guild, Inc. ("Authors

Guild') Plaintiffs other than the Authors Guild have United States copyright interests in books
Guild").
Guild have United States copyrght
books
contained in public libraries, university libraries and elsewhere in the United States.
contained in public librares, university librares and elsewhere in the United States.

A-176
Case 1:05-cv-08136-DC Document 985

2.

Filed 10/14/11 Page 2 of 16

The Authors Guild is the nation's largest organization ofbook authors,
book authors,

2. The Authors Guild is the nation's largest organization of

which has as its primar purpose to advocate for and support the copyright and contractual
which has as its primary purose to advocate for and support the copyrght and contractual
interests of published writers.
interests of published writers.
3.
Defendant Google ("Google") owns and operates a a major Internet
3. Defendant Google Inc. Inc. ("Google") owns and operates major Internet
and other
search engine that, among other things, provides access to commercial and other sites on the
engine
access
Internet. Google has contracted with several public and university librares to create digital
Google has contracted with several public
libraries to create digital
the University of
books, including
"archives" ofthe libraries' collections of books, including those of those ofthe University of Michigan,

"archives" ofthe librares' collections of

Wisconsin, University University of
the University of Wisconsin, and the and the ofCalifomia. As par ofCalifornia. As part of the consideration for

the University of

agreements entitle Google to reproduce and
creating digital copies of these collections, the agreements entitle Google to reproduce and retain

creating digital copies of

for its own commercial use a digital copy of the libraries' archives.
libraries' archives.

for its own commercial use a digital copy of

4.
By reproducing for distrbuting to to these and other libraries a digital
4. By reproducing for andand distributingthese and other libraries a digital

copy of in-copyright Books (defined in paragraph 22 below), by reproducing for itself a digital
in-copyrght Books (defined in paragraph 22 below), by reproducing for itself a digital
copy of these Books, and by publicly displaying these Books, Google is engaging in massive
copy of
copyright infrngement. It has infrnged, and continues to infinge, the electronic and other rights
copyrght infringement. It has infringed, and continues to infringe, the electronic and other
of the copyright holders of the Books.
copyrght holders of
5.
5.

Google has reproduced continues to to reproduce the Books for use on its
Google has reproduced and and continues reproduce the Books for use on its

website in order to, among other things, attract visitors to its web site and generate advertising
to, among other things,
visitors
revenue thereby.
revenue
6.
6.

Google knew or should have known that the Copyright Act, 17 U.S.C. §
Google knew or should have known that the Copyrght Act, 17 U.S.C. §

the copyrghts in
101etet seq. ("the required itrequired it to obtainthe holders of
101
seq. ("the Act"), Act"), to obtain authorization from authorization from the holders of the copyrights in
the Books for the
these Books creating, distributing and reproducing digital copies of
these Books before before creating, distributing and reproducing digital copies of the Books for the
2
2

A-177
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Filed 10/14/11 Page 3 of 16

libraries providing Books to Google, for its own commercial use and for the use of others.
librares providing Books to Google, for its own commercial use and for the use of others.
Despite this knowledge, Google has unlawfully
distributed and publicly displayed
Despite this knowledge, Google has unlawfully reproduced, distrbuted and publicly displayed
the Books, and intends to continue to do so, without the copyright holders' authorization.
the Books, and intends to continue to do so, without the copyrght holders' authorization.
Google has derved, and intends to continue to derive, revenue from this program by, among
Google has derived, and intends to continue to derive, revenue from this program by, among
other things, attracting more viewers and advertisers to its website.
other things, attracting more viewers and advertisers to its website.
By this action, plaintiff authors, on behalf of themselves and all others
7. By this action, plaintiff authors, on behalf of themselves and all others
similarly situated, seek damages, injunctive and declaratory reliefwith respect to Google's
respect Google's

similarly situated, seek damages, injunctive and declaratory relief

present infringement, and declaratory and injunctive relief with respect to Google's past, present
Google's past, present

present infrngement, and declaratory and injunctive relief

and future plannedunauthorized commercial and other use of the Books.
planed unauthorized commercial and other use of the Books.
JURISDICTION AND VENUE
JURISDICTION AND VENUE

8.
8.

ThisThis copyright infringement action arises under 17 U.S.C. § 101et seq.
copyrght infrngement action arises under 17 U.S.C. § 101 et seq.

This Court has jurisdiction over this action under 28 U.S.C. § 1331 (federal question), and
over
1331
28U.S.C. § 1338 § 1338 (acts of Congress related to copyright).
U.S.C. (acts of
Congress related to copyrght).
28
9. Venue is proper in this distrct pursuant to to 28 U.S.C.§§ 1391(b) and
Venue is proper in this district pursuant 28 U.S.C. §§ 1391 (b) and
9.
1400(a) becauseofseveral of the named plaintiffs reside in this district and because defendant
named plaintiffs reside in this distrct
1400(a) because several
maintains offices and conducts business in this district.
maintains offces and conducts
district.
PARTIES
PARTIES
REPRESENTATIVE PLAINTIFFS
REPRESENTATIVE PLAINTIFFS

10. The representative plaintiffs are published, professional authors who
The representative plaintiffs are published, professional authors who
10.
created Books.
created Books.

3
3

A-178
Case 1:05-cv-08136-DC Document 985

II.

Filed 10/14/11 Page 4 of 16

PlaintiffHerbert Mitgang ("Mitgang") resides in New York, New York.
Herbert Mitgang ("Mitgang") resides in New York, New York.

11. Plaintiff

He is a published author of numerous nonfiction Books, and a holder of the United States
He is a published author of numerous nonfiction Books, and a holder of the United States
copyright in the Book The Man Who Rode the Tiger: The Life of
Samuel
and the
copyrght in the Book The Man Who Rode the Tiger: The Life of Judge Samuel Seabury and the
Greatest Investigation of City Corruption in this Century (registration number
Story of
Story of the Greatest Investigation of City Corruption in this Century (registration number
published by Lippincott, which has been copied, distributed and displayed by Google.
A216794), published by Lippincott, which has been copied, distributed and displayed by Google.
12.

Plaintiff Betty Miles ("Miles") resides in Shelburne, Vermont. She is the
Vermont. She is the

12. Plaintiff

author of several Books of children's and young adult fiction and is a holder of the United States
States

author of several Books of children's and young adult fiction and is a holder of

copyright in the Book Just Think (registration
copyrght in the Book Just Think (registration number A330604), published by Alfred A. Knopf,
A330604), published by Alfred
which contained in the library of the University of
which is contained in the library of the University of Michigan.
l3.

Plaintiff Daniel Hoffinan("Hoffman") resides in Swarthmore,
Hoffian ("Hoffinan") resides in Swarthmore,

13. Plaintiff

Pennsylvania. He is the
Pennsylvania. He is the author and editor of many volumes of poetry, translation, and literary
many volumes of poetry, translation, and literar
criticism, and of a memoir. He is a holder of the Unites States copyright in the Book Barbarous
copyrght

criticism, and of a memoir. He is a holder of

Myth in
A896931
Knowledge: Myth in the Poetry of Yeats, Graves. and Muir (registration number A896931 and
of Yeats. Graves,
registration renewal number RE-696-986), published by Oxford University Press, which has been
copied, distributed and displayed by Google.
14.Plaintiff
Plaintiffpaul Dickson ("Dickson") resides in Garrett Park, MD. He is a
Paul Dickson ("Dickson") resides in Garrett Park, MD.
14.
full-time writer and the author of numerous Books, and is a holder of the United States copyright
numerous Books, and is a holder ofthe United States copyrght
full-time writer and the author of
in Out of of This World: American Space Photography (registration number A923312), published
This World: American Space Photography
A923312),
in Out
by Delacorte Press, and The NEW Official Rules: Maxims for Muddling through to the TwentyTwentyOffcial
for
First Century (registration number TX0002621899), published by Addison-Wesley Publishing
TX000262 1899),
First Century
Publishing
Company, which have been copied, distributed and displayed by Google.
Company, which
Google.
4
4

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Filed 10/14/11 Page 5 of 16

15.
Plaintiff Joseph Goulden ("Goulden") resides in Washington, D.C. He is
15. Plaintiff Joseph Goulden ("Goulden") resides in Washington, D.C. He is
the author of several Books, and is a holder of the United States copyright in The Superlawyers:
the author of several Books, and is a holder of the United States copyrght in The Superlawyers:
the
Washington
(registration number
The Small and Powerful World ofthe Great Washington Law Firms (registration number

The Small and Powerful World of

A346254), published by Weybright and Talley, which has been copied, distributed and displayed
A346254), published by Weybright and Talley, which has been copied, distributed and displayed
by
by Google.
16.
Plaintiff Jim Bouton ("Bouton") resides Alford, Massachusetts. He is
16. Plaintiff Jim Bouton ("Bouton") resides inin Alford, Massachusetts. He is

copyrght
the author and copyright holder of several Books, and is a and is a holder of the United States copyright
several Books, holder of

the author and copyrght holder of

Four (registration number A173097), published by World Publishing Company,
in Ball Four (registration number AI73097), published by World Publishing Company, which
has been copied, distrbuted and displayed by Google.
has been copied, distributed and displayed by Google.
17.

copyrghts
Plaintiffs are the exclusive owners of the copyrights for their Books listed
their Books

17. Plaintiffs are the exclusive owners of

Google to reproduce
or
above. None of the plaintiffs has authorized Google to reproduce his or her Books or to display,

above. None of

sell and/or distribute such Books on its website or anywhere else.
website or anywhere
ASSOCIATIONAL PLAINTIFF

18.Plaintiff
Plaintiff The Authors Guild, Inc. ("the Guild") is a not-for-profit
18.
31
corporation organized under New its place law and having its place of business at 31 East 32nd
corporation organized under New York law and having York of

Street, New York, New York. The Guild and its predecessor organization, the Authors League
New York, New York. The Guild and its predecessor organization,
of America ("the League"), have been leading advocates for authors' copyrght and contractual
America
League"),
been leading advocates for authors' copyright and contractual
interests since the League's founding in 1912. The Guild, whose membership includes more
The Guild, whose membership includes more
interests since the

the
than 8,500 published authors, largest organization oflargestThe activities of of authors. The activities of the
than 8,500 published authors, is the nation's is the nation's authors. organization
Guild include reviewing members' publishing and agency contracts; intervening in disputes
Guild include reviewing members' publishing and agency contracts;
involving authors' rights; providing advice to members regarding developments in the law and in
providing advice to members regarding
and
involving authors'
5
5

A-180
Case 1:05-cv-08136-DC Document 985

Filed 10/14/11 Page 6 of 16

the publishing industry that affect their rights; and supporting legislation in matters affecting
the publishing industr that affect their rights; and supporting legislation in matters affecting
copyright, freedom of expression, taxation and other issues affecting professional writers.
copyrght, freedom of expression, taxation and other issues affecting professional writers.
The Guild associational standing to pursue claims for injunctive and
19. The Guild hashas associational standing to pursueclaims for injunctive and
The member authors would have standing to sue in
declaratory relief behalf of
declaratory relief on behalf of its members. The member authors would have standing to sue in
The protection of authors' copynghts germane, indeed central, to the purpose
their own right. The protection of authors' copyrghts isis germane,indeed central, to the purpose
of
Individual participation of the authors is not required to determine whether
of the Guild. Individual partcipation of the authors is not required to determine whether
authors' copyrighted works for commercial use is in
Google's copying and planned display of the authors' copyrghted works for commercial use is in

Google's copying and planed display of

the Act and to injunctive injunctive and
the Guild and the authors.
violation of the Act and to provide provideand declaratory relief declaratory relief to the Guild and the authors.

violation of

DEFENDANT
20.

Google is a Delaware corporation with its principal place of business

20. Google is a Delaware corporation with its principal place of

located in Mountain View, California. Google owns and operates the largest Internet search
Google owns and operates the largest Internet
engine in the United States, which contains links to more than one trillion commercial and
contains links to more than one trillon
noncommercial Internet pages. Its search engine is available free of charge to Internet users, and
Its search engine is available free of charge
purchases of advertising space on Google's and
is supported by commercial and other entities' purchases of advertising space on Google's and
others' websites.
websites.
calls the Google
21. Late in 2004, Google anounced the launch of a a projectititcalls the Google
Late in 2004, Google announced the launch of project
21.
Library Project, which was part of a service it called Google Print and now calls Google Book
Library Project, which was par of a

books online.
Search. Google Book Search isusers to search the text of users to search the text of books online. The
designed to allow
Search. Google Book Search is designed to allow
digital archiving of theBooks that are the are the subject of this lawsuit was undertaken by Google as
this
the Books that subject of
digital archiving of
part of Google Book Search.
par of Google Book Search.

6
6

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CLASS ALLEGATIONS
CLASS ALLEGATIONS
22.
22. TheThe Classdefined as as all persons residing in the United States who hold
Class is is defined all persons residing in the United States who hold
a
copyright interest in one or more Books and are either (a) natural persons who are
a United States copyrght interest in one or more Books and are either (a) natural persons who are
natural persons, family trusts or sole proprietorships who are heirs,
authors of
authors of such Books or (b) natual persons, family trusts or sole proprietorships who are heirs,
or assigns of such authors. "Books" means each full-length book published
successors in interest or assigns of such authors. "Books" means each full-length book published
in the United States in the English language and registered with the United States Copyright
States Copyrght
Office within three months after its first publication. Excluded from the Class are the directors,
Offce within three months after its first publication. Excluded from the Class are the directors,
Google; personnel of the departments, agencies and instrmentalities
the departents, agencies and instrumentalities
officers and employees of Google; personnel of

offcers and employees of

of the United States Government;and Court personneL.
the United States Governent; and Court personnel.

of

23.

be
This action has been brought and may propedybe maintained as a Class

23. This action has been brought and may properly

the Federal Rules of Civil Procedure.
Action pursuant to Rules 23(b)(2) and (b)(3) of the Federal Rules of

Action pursuant to Rules 23(b)(2) and (b)(3) of

24.

Numerosity ofthe Class - Fed. R. Civ. Proc. 23(a)(1): The persons in the
the Class - Fed. R. Civ. Proc. 23(a)(l): The persons in the

24. Numerosity of

oftheir
Class are so numerous that their joinder is impractical, and the disposition of their claims in a
class action rather than in individual actions will benefit the parties and the Court. The exact
class action rather than in individual actions wil benefit the paries and the Cour. The
number of members of the Class is not known to plaintiffs, but plaintiffs reasonably estimate that
members of
number of
there are at least thousands of Class members.
of

Law Fact
25.Existence and Predominance of Predominance of Common Question of Law or Fact -- Fed.
Existence and
Common Question of
25.
R. Civ. Proc. 23(a)(2) & 23(b)(3): There is a well-defined community of interest in the questions
community of
R. Civ. Proc. 23(a)(2) & 23(b)(3): There a
oflaw or fact involved affecting the Class. Questions oflaw or fact common to the Class
oflaw or fact common
oflaw
the Class.
include, but are not limited to, the following:
include, but are not limited to,
following:

7
7

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Filed 10/14/11 Page 8 of 16

a.
Whether Google has digitized (i.e, reproduced) Books and
a. Whether Google has digitized (i.e, reproduced) Books and
distributed copies of such Books to libraries and other sources;
distrbuted copies of such Books to librares and other sources;
Whether Google plans to continue digitize Books and distribute
b. Whether Google plans to continue to to digitize Books anddistribute
of
copies of such Books to libraries and other sources;
librares and other sources;
c.
Whether reproduction and distribution constitutes copyrght
c. Whether such such reproduction and distribution constitutes copyright
infringement;
infingement;
d.
Whether Google has reproduced, plans to continue to
d. Whether Google has reproduced, andand plans to continue to
reproduce, Books for its own commercial use;
e.
Whether reproduction by Google of Books constitutes
e. Whether the the reproduction by Google of Books constitutes
copyright infringement;
copyrght infrngement;
f.
f.

Whether Google's public display content from Books on its
Whether Google's public display of of content fromBooks on its

commercial website infringes the copyrights ofthe Class;
commercial website infinges
copyrghts of the Class;
g.
g.

Whether Google's reproduction, distribution and display of
Whether Google's reproduction, distribution and display of

millions of Booksalleged herein constitute a "fair use" of a "fair use" of the Books;
as alleged herein constitute
Books as
milions of
h. Whether Google acted wilfully with respect to to the actscomplained
Whether Google acted willfully with respect the acts complained
h.
of herein;
of

i. Whether members of the the Class have sustained damagesand, if so,
Whether members of Class have sustained damages and, ifso,
i.
the proper measure of such damages;
j. Whether injunctive relief
Whether injunctive relief is appropriate.
j.
These questions of law or fact predominate over questions that affect only
These questions
affect
individual class members.
8
8

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Typicality - Fed. R. Civ. Proc. 23(a)C3): The claims ofthe representative
the representative

26.

26. Typicality - Fed. R. Civ. Proc. 23(a)(3): The claims of

plaintiffs
typical of those of the Class. All plaintiffs own copyrights in works that have been
plaintiffs are tyical of those of the Class. All plaintiffs own copyrghts in works that have been
or face the imminent threat ofbeing copied, distrbuted and displayed by Google without
being copied, distributed and displayed by Google without

or face the imminent threat of

the representative and all members of
the Class depend on
authorization. The claims ofthe representative plaintiffsplaintiffs and all members ofthe Class depend on

authorization. The claims of

a showing of the acts of of Go ogle complained of
the acts Go ogle complained ofherein.
herein.

a showing of

27.

Adequacy of Representation - Fed. R. Civ. Proc. 23(a)(4): Plaintiffs are
Proc. 23(a)(4): Plaintiffs are

27. Adequacy of

adequate representatives ofthe Class and willfairly and adequately protect the interests of the
wil fairly and adequately
interests ofthe

adequate representatives of

the members of the
Class. Plaintiffs' interests do not in any way conflict with the interests of the members of

Class. Plaintiffs' interests do not in any way conflct with the interests of

Class that they seek to represent. Plaintiffs are committed to the vigorous prosecution of this
to represent. Plaintiffs are committed to the vigorous prosecution of
action litigation and
action and have retained competent counsel experienced in complex class action litigation and in
copyright actions.
copyrght actions.
28.
28.

Injunctive Relief Fed. R. Civ. Proc. 23(b)(2): Google has acted or
Injunctive Relief - - Fed. R.Civ. Proc. 23(b)(2): Google has acted or

refused to act on grounds generally applicable to the Class, making appropriate final injunctive
relief with respect to the Class as a whole.
relief
29. Superiority- Fed. R. R. Civ. Proc. 23(b)(3):AA class actionis the best
29. Superiority- Fed. Civ. Proc. 23(b)(3): class action is the
available method for the fair and efficient adjudication of this controversy. Since the damages
method for the fair and efficient adjudication of this controversy.
suffered by individual class members, while not inconsequential, may be relatively small, the
by individual class members, while
the
expenseburden of individual individual litigation make it impractical for members of the Class to seek
of
expense and and burden of
redress individually for the wrongful conduct alleged herein. Should separate actions be required
redress individually for the wrongful conduct alleged herein.
required
to be brought by eachby each member of
the Class, the resulting multiplicity oflawsuits
to be brought individual individual member of the Class, the resulting multiplicity oflawsuits
would cause undue hardship and expense on the Court and the litigants. A class action is
would cause undue hardship and expense on the Cour and the litigants.
is
9
9

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Filed 10/14/11 Page 10 of 16

therefore the best method to assure that the wrongful conduct alleged herein is remedied, and that
therefore the best method to assure that the wrongful conduct alleged herein is remedied, and that
Plaintiffs anticipate no undue
there is a fair, efficient, and full adjudication of
there is a fair, efficient, and full adjudication of this controversy. Plaintiffs anticipate no undue
this litigation as a class action.
difficulty in the management ofthis litigation as a class action.

diffculty in the management of

GENERAL ALLEGATIONS
GENERAL ALLEGATIONS
30.

Google is in the business ofproviding Internet search services to the
providing Internet search services to the

30. Google is in the business of

It derives the vast majority of its revenues directly from the sale of advertising, and
public. It derives the vast majority of its revenues directly from the sale of advertising, and

would likely be unable offer its search engine and other services to the public free of charge
would likely be unable to offer its search engine and other services to the public free of charge
without a continued stream of advertising revenues.
without a continued stream of advertising revenues.

31. On On December 14, 2004, Google announced in a pressrelease that it had
December 14, 2004, Google announced in a press release that it had
entered into agreements with four university libraries and one public library to "digitally scan
books from their collections so that users worldwide can search them in Google." According to
search them in Google."
Google's release, to be an "expansion of an "expansion of the Google Print program, which assists
Google's release, this was this was to be
publishers in making books and other offline information searchable online. Google is now
making books and other offine
searchable online. Google
working with libraries to digitally scan books from their collections, and over time will integrate
libraries to digitally scan books from their collections, and over time wil
this content into the Google index, to make it searchable for users worldwide." Google's press
content into the Google index, to make it searchable for users worldwide." Google's press
release also claimed that it would make "brief excerpts" of copyrighted material available.
also claimed that it would make "brief excerpts" of copyrghted
32. Google is is providing the scanning technologythat allows the librarybooks
Google providing the scanng technology that allows the librar books
32.
to be copied.
to be copied.
33.
33.

Google uses the Books obtained from various libraries and other sources
Google uses the Books obtained from varous librares and other sources

in order to attract visitors and, thereby, advertisers, to its website.
in order to attract visitors and, thereby, advertisers, to its website.

10
10

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Case 1:05-cv-08136-DC Document 985

34.

Filed 10/14/11 Page 11 of 16

Google has already copied Books from the collections ofvarious libraries,
various libraries,

34. Google has already copied Books from the collections of

including
including Books in which plaintiffs Mitgang, Hoffman,Dickson, Goulden and Bouton own
Mitgang, Hoffian, Dickson, Goulden and Bouton own
United States copyright interests. In so doing, Google has reproduced in their entirety at least
United States copyrght interests. In so doing, Google has reproduced in their entirety at least
two digital copies of such Books one for the library that pennitted Google to digitize such
two digital copies of such Books - one for the library that permitted Google to digitize such
and
Google's own commercial
without the copyright holders'
Books and the other for Google's own commercial use - without the copyrght holders'
copyright. Google has also announced plans to,
pennission and in violation of their rights under copyrght. Google has also announced plans to,

permission and in violation of

and has for several years, publicly displayed the Books on its commercial website.
for
years, publicly
website.
35.

Google continues to reproduce and distribute digitized copies of the

35. Google continues to reproduce and distribute digitized copies of

Class's Books without their authorization. Google continues to display the Books on its website
Class's Books without their authorization. Google continues to display the Books on its website

for the commercial purposes detailed above.
commercial puroses detailed above.
36.
Google's acts have caused, and unless restrained, will continue to cause
36. Google's acts have caused, and unless restrained, wil continue to cause
damages and irreparable injury to representative plaintiffs and the Class through:
a. continuedcontinued copyright infringement of the Books and/or the
a.
copyrght infingement of
effectuation of new and further infrngements;
effectuation of new and fuher infringements;
b.
b.

depreciation in value and abilty to license and sell their Books;
depreciation in the the value and ability to license and sell their Books;

c.
c.

lost profits andlor opportunities; and
lost profits and/or opportnities; and

d.
d.

damage to their goodwill and reputation.
damage to their goodwil and reputation.

37. Google acted wilfully or knew or or should have knownthat its actions
Google acted willfully or knew should have known that its actions
37.
constitute infringement.
constitute infingement.
38.Plaintiffs and the other members ofother members of the Class have suffered damages
Plaintiffs and the
the Class have
damages
38.
and/or are in imminent danger of suffering further damages from Google's unlawful practices.
and/or are in imminent danger of suffering fuher
from
unawful practices.
11
11

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Filed 10/14/11 Page 12 of 16

COUNT
Infringement
COUNT ONE - Copyright Infringement
(By Plaintiffs Mitgang, Hoffman, Dickson, Goulden and Bouton)
(By Plaintiffs Mitgang, Hoffman, Dickson, Goulden and Bouton)
39.
Plaintiffs Hoffinan, Dickson, Goulden and Bouton reallege and
39. Plaintiffs Hoffan, Dickson, Goulden and Bouton reallege and
if
incorporate by reference as if fully set forth herein the allegations contained in all preceding

paragraphs.
40.
Plaintiffs Mitgang, Hoffman, Dickson, Goulden and Bouton and other
40. Plaintiffs Mitgang, Hoffman, Dickson, Goulden and Bouton and other
copyright in and to at least one Book that has been copied,
members of the Class own a valid copyrght in and to at least one Book that has been copied,

members of

distributed and displayed by Google without permission. They, not Google, have the exclusive
permission. They, not Google,
rights to, among other things, reproduce their Books, distribute copies of their Books to the

rights to, among other things, reproduce their Books, distribute copies of

public, publicly display their Books, and authorize such reproduction, distribution and display of
their Books.
41.
Google copied, distrbuted and/or displayed for its own commercial
41. Google has has copied, distributed and/or displayedfor its own commercial
use onemore copies of copies of some of the Books from university libraries or other sources, and
from university librares or other
use one or or more some of
Google has stated that it intends to copy most, if not all, of the Books in the collection of the
most,
of
University of Michigan library and other libraries.
University of
42.Google'sGoogle's conduct is in violation of the copyrights held by named plaintiffs
copyrghts held by
42.
conduct is in violation of
the Class.
Mitgang, Hoffman, Dickson, Goulden and Bouton and other members of the Class.
Mitgang, Hoffman, Dickson, Goulden and Bouton and other members of

43.Google'sGoogle'sofinfringement of thecopyrghts of
the copyrights of the Books was willful.
Books
wilfuL.
43.
infrngement
44. As Asresult of of Google's actsof copyrght infrngement and the foregoing
44.
a a result Google' s acts of copyright infringement and the foregoing
allegations, plaintiffs Mitgang, Hoffman,Dickson, Goulden and Bouton and other members of
allegations, plaintiffs Mitgang, Hoffan, Dickson, Goulden and Bouton
members of
the Class have suffered damages.
the

12
12

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Case 1:05-cv-08136-DC Document 985

Filed 10/14/11 Page 13 of 16

COUNT TWO - Injunctive Relief
COUNT TWO - Injunctive Relief
(By All Plaintiffs)
(By All Plaintiffs)
45.

Plaintiffs reallege and incorporate by reference as iffully set forth herein
fully set forth herein

45. Plaintiffs reallege and incorporate by reference as if

the allegations contained in all preceding paragraphs.
the allegations contained in all preceding paragraphs.
46.
Google reproduced, distrbuted and displayed, and continues to
46. Google has has reproduced, distributed and displayed, and continues to
reproduce, distribute and display, Books contained in the University of Michigan, the University
reproduce, distrbute and display, Bookscontained in the University of Michigan, the University
of Wisconsin, the University of
Wisconsin, the University of California and other libraries.
California and other libraries.

of

Google has also placed such unlawfully copied Books on its website
47. Google has also placed such unlawfully copied Books on its website in
order to, among other things, generate consumer traffic and revenues.
traffc and revenues.
48.

Google's commercial use of the Books constitutes additional wholesale

48. Google's commercial use of

copyright infringement.
copyrght infrngement.
49.

Unless enjoined from doing so, Google's commercial use of the Books,

49. Unless enjoined from doing so, Google's commercial use of

and distribution of the Books to the libraries, willcause plaintiffs and the Class irreparable harm
and distribution ofthe Books to the librares, wil cause plaintiffs and the Class irreparable har
by depriving them of both the right to control the reproduction, display and/or distribution of
to control the reproduction, display and/or distrbution of
by depriving them of
their copyrighted Books and to receive revenue therefrom.
copyrghted Books and to receive
50.
50.

Plaintiffs and the Class are likely to succeed on the merits of their
Plaintiffs and the Class are likely to succeed on the merits of their

the
copyright infringementGoogle's existing and planned uses of existing and planned uses of the Books do not
copyrght infrngement claim because claim because Google's

fall within any of of the statutory exceptions to copyright infringement and are in violation of
statutory exceptions to copyrght infingement
violation of
fall within any
copyright.
copyrght.
51. The balance of
The balance of hardships tips in favor of plaintiffs and the Class, because
hardships
Class,
5 i.
Google's massive earningswil not be severely damaged by its inabilty to create a new stream of
Google's massive earngs will not be severely damaged by its inability to create a new
revenues and because other comprehensive electronic databases exist for public use.
revenues and because other comprehensive electronic databases exist for public use.
13
13

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Case 1:05-cv-08136-DC Document 985

Filed 10/14/11 Page 14 of 16

52.
Plaintiffs are therefore entitled to an injunction barng Google from
52. Plaintiffs are therefore entitledto an injunction barring Google from
continued infrngement of the copyrghts of plaintiffs and the Class, and other equitable relief as
infringement of the copyrights of plaintiffs and the Class, and other equitable relief as

more fully set forthin the Prayer for Relief.
fort in the Prayer for Relief.

COUNT THREE - Declaratory Relief
- Declaratory
(By All Plaintiffs)
(By All Plaintiffs)

53.

Plaintiffs reallege and incorporate by reference as if fully set forth herein

53. Plaintiffs reallege and incorporate by reference as if

contained in all preceding paragraphs.
the allegations contained in all preceding paragraphs.
54.
54. An An actual controversy exists between the Authors Guild,the representative
actual controversy exists between the Authors Guild, the representative
and the Class, on the one hand, and Google, on the other hand, by reason of Google's
plaintiffs and the Class, on the one hand, and Google, on the other hand, by reason of Google' s
present and continuing infringement of the representative plaintiffs' and the Class's copyrghts as
and the Class's copyrights as
infrngement ofthe representative
alleged herein.

55.Plaintiffs are entitledarea entitled to a judgment declaring that Google's actions are
Plaintiffs to
Google's actions are
55.
representative
unlawful and, specifically, that Google infringed and continues to infringe the representative
and, specifically, that Google infrnged
continues to infrnge

the Copyrght
plaintiffs' the Class's United StatesUnited States copyrights in violation of the Copyright Act.
plaintiffs' and and the Class's
copyrghts in violation of
PRAYER FOR RELIEF
FOR RELIEF
WHEREFORE,plaintiffs pray for relief and that judgment be entered
WHEREFORE, plaintiffs pray for relief and that
against defendant as follows:
A.For certification of
For certification of the Class;
A.
B. For For an award of damages underthe Copyrght Act;
B.
an award of damages under the Copyright Act;
C. For For injunction (a) barrng Google from continued
C.
an an injunction (a) barring Google from continued
infringement of thecopyrghts of
the representative plaintiffs and the Class,
(b) other
the copyrights of the representative plaintiffs and the Class, and/or (b) other
infingement of
equitable relief to redress any continuing violations of violations of the Act;
the Act;
equitable relief
to redress any continuing

14
14

A-189
Case 1:05-cv-08136-DC Document 985

D.

Filed 10/14/11 Page 15 of 16

For (a) pennanent injunctive and declaratory reliefbarng
barring

D. For (a) permanent injunctive and declaratory relief

Google from continued infringement ofthe copyrghts of
the copyrights ofthe representative plaintiffs and the
the representative plaintiffs and the

Google from continued infrngement of

to redress any continuing
the Act;
Class, and/or (b) other equitable reliefto redress any continuing violations of violations ofthe Act;

Class, and/or (b) other equitable relief

E.
For costs attorneys' fees; and
E. For costs andand attorneys' fees; and
F.
For other and furter relief as the Court finds just and
F. For such such other and further relief as the Court findsjust and
proper.

15
15

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Case 1:05-cv-08136-DC Document 985

Filed 10/14/11 Page 16 of 16

DEMAND
TRIAL
DEMAND FOR JURY TRIAL
The representative plaintiffs, as provided by Rule 38 ofthe Federal Rules of Civil
the Federal Rules of Civil

The representative plaintiffs, as provided by Rule 38 of

Procedure, request trial by jury in the above-captioned matter.
Procedure, request trial by jury in the above-captioned matter.

Dated: October 14, 2011
Dated: October 14, 2011

~/~

Sanford P. Dumain
MILBERGLLP
MILBERG LLP
One Pennsylvania Plaza
10119
New York, NY 10119
Tel: [phone]
Tel: [phone]

Fax: [phone]
Fax: [phone]
[e-mail]
sdumain(Ðmilberg.com

Michael J. Boni (pro hac vice)
Joanne
Joane Zack
BaNI
BONI & ZACK LLC
15
15 St. Asaphs Rd.
Bala Cynwyd, PA 19004
A
[phone] (phone)
[phone] (phone)
[phone] (fax)
[phone] (fax)
MBoni(Ðbonizack.com
[e-mail]
[e-mail]
JZack(Ðbonizack. com

Robert J. LaRocca
J.
KOHN
&
KaHN SWIFT & GRAF, P.C.
One South Broad Street, Suite 2100
Street,
Philadelphia, P A 19107
PA
Telephone: [phone]
Telephone:
Facsimile:
Facsimile: [phone]
[e-mail]
rlarocca(Ðkohnswift. com

Counsel for Plaintifft
Counsel for Plaintif

16
16

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Case 1:05-cv-08136-DC Document 1027

Filed 06/14/12 Page 1 of 10

DURIE TANGRI LLP
DARALYN J. DURIE (Pro Hac Vice)
[e-mail]
JOSEPH C. GRATZ (Pro Hac Vice)
[e-mail]
DAVID McGOWAN (Pro Hac Vice)
[e-mail]
GENEVIEVE P. ROSLOFF (Pro Hac Vice)
[e-mail]
217 Leidesdorff Street
San Francisco, CA 94111
Telephone:
415-362-6666
Facsimile:
415-236-6300
Attorneys for Defendant
Google Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
The Authors Guild, Inc. et al.,
Civil Action No. 05 CV 8136 (DC)

Plaintiffs,
v.
Google Inc.,
Defendant.

DEFENDANT GOOGLE INC.’S ANSWER TO
PLAINTIFFS’ FOURTH AMENDED COMPLAINT
Defendant Google Inc. (“Google”) answers Plaintiffs’ Complaint as follows:
NATURE OF THE ACTION
1.

Google is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraph 1 of the Fourth Amended Complaint and therefore denies
such allegations.

1

A-192
Case 1:05-cv-08136-DC Document 1027

2.

Filed 06/14/12 Page 2 of 10

Google is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraph 2 of the Fourth Amended Complaint and therefore denies
such allegations.
3.

Google admits that it owns and operates an Internet search engine, that it has

entered into agreements with several libraries (including those of the Universities of Michigan,
Wisconsin, and California) to digitally scan and create a searchable index of the words in many
books in their collections, and that it will retain a digital scan of such books. Google denies the
remaining allegations in paragraph 2 of the Fourth Amended Complaint.
4.

Google denies the allegations in paragraph 4 of the Fourth Amended Complaint.

5.

Google denies the allegations in paragraph 5 of the Fourth Amended Complaint.

6.

Google denies the allegations in paragraph 6 of the Fourth Amended Complaint.

7.

Google admits that Plaintiffs have brought a purported class action seeking

damages and injunctive and declaratory relief for alleged copyright infringement. Google denies
the remaining allegations in paragraph 7 of the Fourth Amended Complaint.
JURISDICTION AND VENUE
8.

Google admits that Plaintiffs purport to bring a copyright infringement action

under 17 U.S.C. § 101, et seq., and that such an action presents a federal question under 28
U.S.C. §§ 1331 and 1338.
9.

Google admits that venue is proper in this district.
PARTIES
REPRESENTATIVE PLAINTIFFS

10.

Google is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraph 10 of the Fourth Amended Complaint and therefore denies
such allegations.

A-193
Case 1:05-cv-08136-DC Document 1027

11.

Filed 06/14/12 Page 3 of 10

Google is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraph 11 of the Fourth Amended Complaint and therefore denies
such allegations.
12.

Google is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraph 12 of the Fourth Amended Complaint and therefore denies
such allegations.
13.

Google is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraph 13 of the Fourth Amended Complaint and therefore denies
such allegations.
14.

Google is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraph 14 of the Fourth Amended Complaint and therefore denies
such allegations.
15.

Google is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraph 15 of the Fourth Amended Complaint and therefore denies
such allegations.
16.

Google is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraph 16 of the Fourth Amended Complaint and therefore denies
such allegations.
17.

Google admits that it has not entered into any agreements with the Named

Plaintiffs concerning the books listed in paragraphs 10 through 16 of the Fourth Amended
Complaint. Google is without knowledge or information sufficient to form a belief as to the
truth of the remaining allegations in paragraph 17 of the Fourth Amended Complaint and
therefore denies such allegations.

A-194
Case 1:05-cv-08136-DC Document 1027

Filed 06/14/12 Page 4 of 10

ASSOCIATIONAL PLAINTIFF
18.

Google is without knowledge or information sufficient to form a belief as to the

truth of the allegations in paragraph 18 of the Fourth Amended Complaint and therefore denies
such allegations.
19.

Google is without knowledge or information sufficient to form a belief as to the

truth of the allegations that the member authors of the Authors Guild would have standing to sue
Google for copyright infringement in their own right and that protection of authors’ copyrights is
germane to the purposes of the Author’s Guild, and therefore denies such allegations. Google
denies the remaining allegations in paragraph 19 of the Fourth Amended Complaint.
DEFENDANT
20.

Google admits that it is a Delaware corporation with its principal place of

business located in Mountain View, California, that it operates a large Internet search engine,
and that it receives revenue from advertising.
21.

Google admits that in 2004 it announced the launch of the Library Project, which

is part of its Google Book Search (formerly known as Google Print) service. Google further
admits that Google Book Search allows users to search an index of the words in books. Google
denies the remaining allegations in paragraph 21 of the Fourth Amended Complaint.
CLASS ALLEGATIONS
22.

Google admits that the Complaint purports to define a class as set forth in

paragraph 22 of the Fourth Amended Complaint.
23.

Google denies the allegations in paragraph 23 of the Fourth Amended Complaint.

24.

Google denies the allegations in paragraph 24 of the Fourth Amended Complaint.

25.

Google denies the allegations in paragraph 25 of the Fourth Amended Complaint.

26.

Google denies the allegations in paragraph 26 of the Fourth Amended Complaint.

A-195
Case 1:05-cv-08136-DC Document 1027

Filed 06/14/12 Page 5 of 10

27.

Google denies the allegations in paragraph 27 of the Fourth Amended Complaint.

28.

Google denies the allegations in paragraph 28 of the Fourth Amended Complaint.

29.

Google denies the allegations in paragraph 29 of the Fourth Amended Complaint.
GENERAL ALLEGATIONS

30.

Google admits that it provides Internet search services to the public and derives

the majority of its revenue from advertising. Google denies the remaining allegations in
paragraph 30 of the Fourth Amended Complaint.
31.

Google admits that on December 14, 2004, it issued a press release, which speaks

for itself.
32.

Google admits that it provides technology which is used in scanning library

books. Google denies any remaining allegations in paragraph 32 of the Fourth Amended
Complaint.
33.

Google denies the allegations in paragraph 33 of the Fourth Amended Complaint.

34.

Google admits that it has digitally scanned some Books from libraries. Google

further admits that it has scanned some of the Books without obtaining the copyright holder’s
permission, but avers that such permission is not required. Google denies the remaining
allegations in paragraph 34 of the Fourth Amended Complaint.
35.

Google denies the allegations in paragraph 35 of the Fourth Amended Complaint.

36.

Google denies the allegations in paragraph 36 of the Fourth Amended Complaint.

37.

Google denies the allegations in paragraph 37 of the Fourth Amended Complaint.

38.

Google denies the allegations in paragraph 38 of the Fourth Amended Complaint.

A-196
Case 1:05-cv-08136-DC Document 1027

Filed 06/14/12 Page 6 of 10

COUNT ONE - Copyright Infringement
(by Plaintiffs Mitgang, Hoffman, Dickson, Goulden and Bouton)
39.

Google incorporates by reference its answers to paragraphs 1 through 38 above as

if fully restated herein.
40.

Google is without knowledge or information sufficient to form a belief as to the

truth of the allegation in paragraph 40 of the Fourth Amended Complaint that the Named
Plaintiffs and the Class own a valid copyright in and to at least one Work that has been scanned
by Google, and therefore denies such allegation. Google denies the remaining allegations in
paragraph 40 of the Fourth Amended Complaint.
41.

Google admits that it has scanned some of the literary works contained in

university libraries and from other sources, and that it intends to scan additional literary works in
university libraries. Google denies the remaining allegations in paragraph 41 of the Fourth
Amended Complaint.
42.

Google denies the allegations in paragraph 42 of the Fourth Amended Complaint.

43.

Google denies the allegations in paragraph 43 of the Fourth Amended Complaint.

44.

Google denies the allegations in paragraph 44 of the Fourth Amended Complaint.
COUNT TWO - Injunctive Relief
(by All Plaintiffs)

45.

Google incorporates by reference its answers to paragraphs 1 through 44 above as

if fully restated herein.
46.

Google admits that it has made digital scans of some of the works contained in the

named libraries. Google denies the remaining allegations in paragraph 46 of the Fourth
Amended Complaint.
47.

Google denies the allegations in paragraph 47 of the Fourth Amended Complaint.

48.

Google denies the allegations in paragraph 48 of the Fourth Amended Complaint.

A-197
Case 1:05-cv-08136-DC Document 1027

Filed 06/14/12 Page 7 of 10

49.

Google denies the allegations in paragraph 49 of the Fourth Amended Complaint.

50.

Google denies the allegations in paragraph 50 of the Fourth Amended Complaint.

51.

Google denies the allegations in paragraph 51 of the Fourth Amended Complaint.

52.

Google denies the allegations in paragraph 52 of the Fourth Amended Complaint.
COUNT III - Declaratory Relief
(by All Plaintiffs)

53.

Google incorporates by reference its answers to paragraphs 1 through 52 above as

if fully restated herein.
54.

Google denies the allegations in paragraph 54 of the Fourth Amended Complaint.

55.

Google denies the allegations in paragraph 55 of the Fourth Amended Complaint.
JURY DEMAND

Defendant Google Inc. demands a jury trial of all issues triable by jury under applicable
law.
DEFENSES
FIRST DEFENSE
The Complaint fails to state a claim upon which relief can be granted.
SECOND DEFENSE
The Court lacks jurisdiction over the subject matter of this action because Plaintiffs lack
statutory and Article III standing to bring this action and/or because the case or controversy, if
any ever existed, is now moot.
THIRD DEFENSE
Plaintiffs’ claims and/or the remedies sought are barred by the First Amendment to the
United States Constitution.

A-198
Case 1:05-cv-08136-DC Document 1027

Filed 06/14/12 Page 8 of 10

FOURTH DEFENSE
Plaintiffs’ claims are unsuitable for class treatment pursuant to Federal Rule of Civil
Procedure 23.
FIFTH DEFENSE
Google’s use of and activities with respect to books that are subject to copyright are
subject to one or more of the limitations on 17 U.S.C. § 106 set forth in 17 U.S.C. §§ 107-122.
SIXTH DEFENSE
Some or all of the Plaintiffs’ claims are barred or subject to dismissal for failure to
comply with renewal, notice, and registration requirements, and with other necessary formalities.
SEVENTH DEFENSE
Some or all of the copyrights on which Plaintiffs rely have been forfeited or abandoned.
EIGHTH DEFENSE
Some or all of Plaintiffs’ works or portions thereof are not original.
NINTH DEFENSE
Some or all of Plaintiffs’ works or portions thereof are in the public domain.
TENTH DEFENSE
Some or all of Plaintiffs’ claims are barred by the merger doctrine.
ELEVENTH DEFENSE
Some or all of Plaintiffs’ works or portions thereof constitute unprotectable ideas,
procedures, processes, systems, methods of operation, concepts, principles, or discoveries.
TWELFTH DEFENSE
Some or all of Plaintiffs’ works or portions thereof constitute scenes a faire.

A-199
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Filed 06/14/12 Page 9 of 10

THIRTEENTH DEFENSE
Some or all of Plaintiffs’ claims are barred because Plaintiffs have engaged in copyright
misuse and have unclean hands.
FOURTEENTH DEFENSE
Some or all of Plaintiffs’ claims or some or all of the relief sought for such claims are
barred by the doctrines of waiver, estoppel, laches, or acquiescence.
FIFTEENTH DEFENSE
Google has a license to scan, copy, and/or display some or all of Plaintiffs’ works or
portions thereof.
SIXTEENTH DEFENSE
Some or all of Plaintiffs’ claims are barred because Plaintiffs do not own the copyright
and/or electronic rights for some or all of the works.
\\
\\
\\
\\
\\
\\
\\
\\
\\
\\
\\
\\

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Case 1:05-cv-08136-DC Document 1027

Filed 06/14/12 Page 10 of 10

WHEREFORE, Defendant Google Inc. respectfully prays the Court as follows:
1.

That the Court dismiss the Complaint;

2.

That the Court deny certification of the proposed class;

3.

That Plaintiffs recover nothing of Google;

4.

That the Court deny Plaintiffs’ request for injunctive and declaratory relief;

5.

That the costs of this action, including reasonable attorneys’ fees, be taxed against

Plaintiffs pursuant to 17 U.S.C. § 505 or other applicable law; and
6.

That the Court grant Google such other and further relief as the Court deems just

and proper.

Dated: June 14, 2012

Respectfully submitted,

By:

/s/ Joseph C. Gratz
Daralyn J. Durie (pro hac vice)
[e-mail]
Joseph C. Gratz (pro hac vice)
[e-mail]
DAVID McGOWAN (Pro Hac Vice)
[e-mail]
GENEVIEVE P. ROSLOFF (Pro Hac Vice)
[e-mail]
DURIE TANGRI LLP
217 Leidesdorff Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: 415-236-6300
Attorneys for Defendant Google Inc.

A-201
Case 1:05-cv-08136-DC Document 1034

Filed 07/27/12 Page 1 of 2

DURIE TANGRI LLP
DARALYN J. DURIE (Pro Hac Vice)
[e-mail]
JOSEPH C. GRATZ (Pro Hac Vice)
j gratz@durietangrLcom
DAVID McGOWAN (Pro Hac Vice)
[e-mail]
GENEVIEVE P. ROSLOFF (Pro Hac Vice)
[e-mail]
21 7 Leidesdorff Street
San Francisco, CA 94111
Telephone:
415-362-6666
Facsimile:
415-236-6300
Attorneys for Defendant
Google Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
THE AUTHORS GUILD, INC., Associational
Plaintiff, BETTY MILES, JOSEPH
GOULDEN, and JIM BOUTON, on behalf of
themselves and all other similarly situated,
Plaintiffs,

Civil Action No. 05 CV 8136 (DC)

ECF Case

v.
GOOGLE INC.,
Defendant.

DECLARATION OF JUDITH A. CHEVALIER
IN SUPPORT OF DEFENDANT GOOGLE INC.'S
MOTION FOR SUMMARY JUDGMENT

A-202
Case 1:05-cv-08136-DC Document 1034

Filed 07/27/12 Page 2 of 2

I, Judith A. Chevalier, declare as follows:
1.

I am the William S. Beinecke Professor of Economics and Finance at the Yale

University School of Management.
2.

I have been retained by Defendant Google Inc. as an expert in this matter to assess

certain economic factors relevant to the Google Books Project and the effect of such scanning
and related uses on authors and consumers.
3.

My expert report, which was submitted in this matter on May 4, 2012, is attached

hereto as Exhibit A. The facts in that report stated on my personal knowledge are true and
correct. The report also states truly and correctly my opinions in this matter, based on the facts
of which I have personal knowledge and the additional information reflected in the report.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. Executed on July \

8, 20] 2 in

*\0

r\a.\ev1 C

1

A-203
Case 1:05-cv-08136-DC Document 1034-1

Filed 07/27/12 Page 1 of 32

EXHIBIT A

A-204
Case 1:05-cv-08136-DC Document 1034-1

Filed 07/27/12 Page 2 of 32

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

THE AUTHORS GUILD, INC., et al.
Plaintiffs

v.

GOOGLE INC,
Defendant.

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Civil Action No. 05 CV 8136 (DC)

EXPERT REPORT OF
JUDITH A. CHEVALIER
May 4, 2012

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Table of Contents
I. 

Introduction ............................................................................................................................ 1 
A.  Background and Experience ............................................................................................ 1 
B.  Assignment ...................................................................................................................... 2 
C.  Summary of Conclusions ................................................................................................. 2 

II. 

The Google Books Project ..................................................................................................... 2 

III.  Google Books is a “New Good” ............................................................................................ 4 
A.  The Introduction of Google Books .................................................................................. 4 
B.  The Effect of Google Books on Consumers .................................................................... 7 
C.  Summary .......................................................................................................................... 9 
IV.  The Effect of Google Books on Authors ............................................................................... 9 
A.  Google Books is a Complement – Not a Substitute – to the Purchase of a Book ........... 9 
B.  Had Google Not Developed Google Books, It is Likely that No Alternative Market
Would Have Arisen ....................................................................................................... 14 

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I.

Introduction

A. Background and Experience
1.

I am the William S. Beinecke Professor of Economics and Finance at the Yale University
School of Management. I also hold a joint courtesy appointment at the Yale Department
of Economics. I received my undergraduate degree in Economics from Yale University
in 1989 and my Ph.D. in Economics from the Massachusetts Institute of Technology in
1993. I was an assistant professor in the Department of Economics at Harvard University
from 1993 to 1994. I was a faculty member at the University of Chicago Graduate
School of Business from 1994 to 2001, reaching the rank of full professor in 1999. I
have been a faculty member at Yale University School of Management since 2001. I am
a Research Associate at the National Bureau of Economic Research. From 2007 to 2009,
I was the Deputy Provost for Faculty Development at Yale University.

2.

At Yale University, I teach courses in competitive strategy at the MBA level including a
course entitled “Technology Strategy.” This course helps students understand strategic
issues that arise in high technology industries. I also teach a course entitled “Business,
Public Policy and the Information Economy” at the undergraduate level, although I have
previously taught a version of this course at the MBA level. This course examines
copyright, antitrust, and regulatory issues in telecommunications and broadcasting. At
Yale University, I am also a former member and Chair of the University’s Committee on
Cooperative Research, a committee that oversees the University’s patenting and licensing
policies.

3.

My research interests include corporate finance and applied industrial organization, and I
have published numerous articles in these areas in the American Economic Review;
Journal of Political Economy; The Journal of Industrial Economics; The Journal of Law
and Economics; The Journal of Law, Economics, & Organization; Quarterly Journal of
Economics; Journal of Marketing Research; and The Journal of Finance, among others.
In 1999, I received the Elaine Bennett Research Prize, a prize for excellence in research
by a woman economist given every two years by the Committee on the Status of Women
in the Economics Profession of the American Economic Association.

4.

I am a co-editor of the RAND Journal of Economics, a former co-editor of the American
Economic Review and a former co-editor of The B.E. Journal of Economic Analysis and
Policy. I have previously served as an associate editor of The Journal of Finance, The
Quarterly Journal of Economics, the Journal of Economic Perspectives, and the RAND
Journal of Economics, among others. I am a member of the Advisory Board of
Quantitative Marketing and Economics and a former member of the Editorial Board of
The Journal of Industrial Economics. I was an elected member of the Executive
Committee of the American Economic Association. In 2006, I was elected to the
American Academy of Arts and Sciences.

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5.

My curriculum vitae, which is attached as Appendix A, gives more biographical details
and lists my writings. Appendix B specifies the testimony that I have given in the past
four years as an expert witness. Employees of Analysis Group, Inc., an economics
research and consulting firm, working under my direction and supervision, have assisted
me in this assignment. I am being compensated at an hourly rate of $750 for time spent
on this matter. In addition, I receive compensation based on the professional fees of
Analysis Group. This compensation is not contingent upon the nature of my findings or
on the outcome of this litigation.
B. Assignment

6.

I understand that Plaintiffs, three individual authors and the Authors Guild, allege that
Google, Inc. (“Google”) has infringed the Plaintiffs’ copyrights by scanning and indexing
several million books as part of its Google Books project (“Google Books”), as well as by
making certain related uses of those works, such as displaying snippets. I have been
asked by counsel for Google to assess certain economic factors relevant to the Google
Books Project and the effect of such scanning and related uses on authors and consumers.
C. Summary of Conclusions

7.

I conclude, based on the evidence I have seen, that: (1) Google Books is a new good – it
provides benefits to consumers that previous goods did not; (2) Google Books provides
value to authors; (3) economic analysis provides no reason to believe that Google Books
has superseded any potential market for books or licenses to scan and index books.

8.

My opinions are contained in this report. In reaching these opinions, I have considered
various materials, including depositions and documents produced in discovery, articles,
and other public documents and data. The list of sources I have considered in preparing
this report is attached as Appendix C. My work in this matter is ongoing, and I may
amend or supplement this report in light of new information, additional discovery, or
expert testimony and opinion in this case.
II.

The Google Books Project

9.

Google Books is a search tool developed by Google. Users of Google Books enter search
terms into Google’s search engine; Google Books displays certain information about
books with content that contains a match for that search term.1 For any book that is part
of the Google Books project, the user can see general information about the book – its
title, author, publisher, date of publication, etc. The user is also provided with links to
online booksellers and libraries carrying the book.2

1

See http://books.google.com/googlebooks/about.html, accessed April 30, 2012. See also Deposition of
Daniel Clancy, February 10, 2012, pp. 122-123.
Deposition of Daniel Clancy, February 10, 2012, p. 159.

2

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10.

If a book has been determined to be in the public domain, Google Books provides the
entire text of the book (“full view”) of that book and users can download a PDF of the
book.3 For books not in the public domain, if the author or publisher has given Google
permission, users can see a limited number of pages from the book.4 In other instances,
Google Books provides only a “snippet view” – a small amount of text (about one-eighth
of a page)5 that displays the search term in context.6 Google provides a snippet view for
works that have not been confirmed to be in the public domain and for which the author
or publisher has not requested that the book be removed from snippet view.7 Finally, for
some books, Google Books provides no preview;8 these include books whose authors
have requested that no preview be provided, as well as reference books and books of
poetry.9

11.

Google began developing Google Books in 2004 (at the time, it was known as “Google
Print”); Google initially partnered with University of Michigan, Harvard University,
Stanford University, Oxford University, and the New York Public Library to scan their
collections (or portions thereof).10 Partners today also include: University of California,
Columbia University, Princeton University, the Austrian National Library, Ghent
University Library, and Keio University Library.11

12.

Books indexed in Google Books come from two primary sources – the “Partner Program”
and the “Library Project.” Under the Partner Program, publishers or authors typically
authorize Google to display multiple pages from a book.12 More than 45,000 publishers
participate in the Partner Program.13

13.

The Library Project is the means by which Google has received millions of books from
university and public libraries, which it scans and indexes.14 Google returns the physical

3

See http://books.google.com/googlebooks/screenshots.html, accessed April 30, 2012.
See http://books.google.com/googlebooks/screenshots.html, accessed April 30, 2012.
Declaration of Daniel Clancy in Support of Google Inc.’s Opposition to Plaintiffs’ Motion for Class
Certification, February 7, 2012, p. 2.
See http://books.google.com/googlebooks/screenshots.html, accessed April 30, 2012.
Defendant Google Inc’s Supplemental Narrative Responses and Objections to Plaintiffs’ Second Request
for Production of Documents and Things, pp. 6-7.
See http://books.google.com/googlebooks/screenshots.html, accessed April 30, 2012.
Deposition of Daniel Clancy, February 10, 2012, pp. 90, 188.
Declaration of Daniel Clancy in Support of Google Inc.’s Opposition to Plaintiffs’ Motion for Class
Certification, February 7, 2012, p. 2; and Deposition of Daniel Clancy, February 10, 2012, p. 19. See also
http://books.google.com/googlebooks/history.html, accessed April 30, 2012.
See http://books.google.com/googlebooks/partners.html, accessed April 30, 2012.
Declaration of Daniel Clancy in Support of Google Inc.’s Opposition to Plaintiffs’ Motion for Class
Certification, February 7, 2012, pp. 2-3. See also http://books.google.com/googlebooks/screenshots.html,
accessed April 30, 2012.
Declaration of Daniel Clancy in Support of Google Inc.’s Opposition to Plaintiffs’ Motion for Class
Certification, February 7, 2012, p. 3.
Deposition of Daniel Clancy, February 10, 2012, pp. 17-18.

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books to the library; each library may also download a digital copy of each work it
provided.15
14.

To date, more than 20 million books have been scanned as part of Google Books.16 Over
2.5 million books are included in Google Books through the Partner Program;17 the
remainder is included in Google Books through the Library Project.18 Users of Google
Books can see snippets in English for more than four million of these books.19
III.

Google Books is a “New Good”

A. The Introduction of Google Books
15.

There is basic agreement in the field of economics that the introduction of new goods is
an important contributor to improved consumer well-being. It is also generally agreed
that a truly “new good” is one for which no close substitute is already available in the
marketplace.20 In other words, a central element that makes a good “new” is its ability to
“satisfy previously unmet, or at the least badly met, needs.”21 The ability of new goods
to address previously unmet needs improves the well-being of society overall; this arises
from the fact that existing goods are poor substitutes for new ones.

15

Defendant Google Inc.’s Supplemental Narrative Responses and Objections to Plaintiffs’ Second Request
for Production of Documents and Things, December 9, 2011, p. 8; Deposition of Daniel Clancy, February
10, 2012, p. 35; and Deposition of Stephane Jaskiewicz, February 14, 2012, pp. 63-65.
Declaration of Daniel Clancy in Support of Google Inc.’s Opposition to Plaintiffs’ Motion for Class
Certification, February 7, 2012, p. 2.
Declaration of Daniel Clancy in Support of Google Inc.’s Opposition to Plaintiffs’ Motion for Class
Certification, February 7, 2012, p. 3.
Deposition of Daniel Clancy, February 10, 2012, pp. 17-18.
Declaration of Daniel Clancy in Support of Google Inc.’s Opposition to Plaintiffs’ Motion for Class
Certification, February 7, 2012, p. 2.
See, for example, Timothy Bresnahan and Robert Gordon, “Introduction,” The Economics of New Goods,
eds. Timothy Bresnahan and Robert Gordon (University of Chicago Press, 1996): “An alternative view
stresses the differences rather than the similarities of the new good. Automobiles and horses, or
automobiles and railroads, are such poor substitutes that we should think of a new item in the utility
function – automobile services.” p. 14; Jerry Hausman, “Valuation of New Goods under Perfect and
Imperfect Competition,” The Economics of New Goods, eds. Timothy F. Bresnahan and Robert J. Gordon
(University of Chicago Press, 1996): “…the appropriate measure of distance between two goods is really
their cross-price elasticities, which relate to what extent consumers find the two goods to be close
substitutes,” pp. 229-230; and Charles Schultze and Christopher Mackie, At What Price?: Conceptualizing
and Measuring Cost-of-Living and Price Indexes, eds. Charles Schultze and Christopher Mackie (The
National Academies Press, 2002): “Products also appear that are novel to the point that there is no place in
the CPI item structure to accommodate them: cell phones, home computers, and VCRs are examples. These
are products whose characteristics would be difficult to ‘repackage’… into existing goods and services no
matter how broadly definitions are drawn,” pp. 155-156.
Timothy Bresnahan and Robert Gordon, “Introduction,” The Economics of New Goods, eds. Timothy
Bresnahan and Robert Gordon (University of Chicago Press, 1996), p. 5. While there is basic agreement on
this principle, there is no precise dividing line between a new good and an improved version of an old
good. See, for example, Charles Schultze and Christopher Mackie, At What Price?: Conceptualizing and
Measuring Cost-of-Living and Price Indexes, eds. Charles Schultze and Christopher Mackie (The National
Academies Press, 2002), pp. 159-160. See also Timothy Bresnahan, “The Apple-Cinnamon Cheerios War:
Valuing New Goods, Identifying Market Power, and Economic Measurement,” Unpublished.

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16.

Economists often model the introduction of a new good by describing a world in which
the new good was always available in theory, but was only available at a prohibitively
high price – a price at which no one would be willing to buy the good (often called the
“choke price”).22 Once a firm is able to offer the new good at a price that is not
prohibitively high (i.e., at a price for which there will be positive demand and which
makes sense, on the whole, for the firm), the firm will then introduce that good into the
market.23

17.

Therefore, a useful way to think about the introduction of Google Books is to employ the
same perspective that economists use to measure the benefits from the introduction of a
new good. Prior to the introduction of Google Books, some of the benefits provided were
theoretically available to some users in a limited way, but likely at a prohibitive cost.24
For example, consider a consumer who was interested in finding economics books that
use the term “choke price.” Such a consumer could go to a very well-equipped library,
and sift through all books related to economics in order to find books using the term
“choke price.” As part of this search, the consumer would have to decide what books to
look through. For example, the consumer could restrict her search to general economics
textbooks or expand it to other, more specialized works. More comprehensive searching
would take more time. Thus, the benefits of Google Books were partially available to a
limited group of consumers (those with access to an excellent library), but the cost of
obtaining those partial benefits was prohibitive. The user would have to spend a
significant amount of time looking through many books, and much of that time would

22

See, for example, Jerry Hausman, “Valuation of New Goods under Perfect and Imperfect Competition,” in
The Economics of New Goods, eds. Timothy Bresnahan and Robert Gordon (University of Chicago Press,
1996): “The correct price to use for the good in the preintroduction period is the ‘virtual’ price which sets
demand to zero.” p. 210; and Austan Goolsbee, “Subsidies, the Value of Broadband, and the Importance of
Fixed Costs,” in Broadband: Should We Regulate High-Speed Internet Access?, eds. Robert Crandall and
James Alleman (Brookings, 2002): “While this type of analysis is straight forward in principle, the problem
in practice is that one typically observes data that are rather far removed from the ‘choke’ price at which
demand would go to zero,” p. 279.
The consumer surplus created from the introduction of the new good is modeled as equivalent to the
consumer surplus created when the price of the good is reduced from the choke price to the market price.
Google Books was not the first book scanning and digitization project to be launched. For example, the
Million Book Project, launched in 2000 under the direction of personnel at Carnegie Mellon University,
was a cooperative project with universities in China and India, the Biblioteca Alexandrina, and other
partners. The project made scanned books accessible at websites in India and China. Other digitization
projects include the Library of Congress’s American Memory project which scanned historical documents,
photographs, sound recordings, moving pictures, books, pamphlets, and maps; and Project Gutenberg, a
project that involved keying in texts. (Gloriana St. Clair, “The Million Book Project in Relation to Google,”
Journal of Library Administration, 2008, 47:1-2, pp. 151-163.) The key difference between Google Books
and past digitization projects relates to scale. Google Books is much more comprehensive and includes
over 20 million books, whereas the Million Book Project, for example, included approximately 1.4 million
books. The comprehensiveness of Google Books also makes it an effective search index, setting it apart
from past digitization projects which primarily provided consumers an alternate means of accessing a book.
Overall, the scale and accessibility of Google Books makes it much more valuable to consumers than past
digitization efforts. To the extent that payments were made to authors whose books appeared in these
earlier digitization efforts, this occurred, to my knowledge, only under circumstances where the full text of
the work was available to users. See also Expert Report of Dr. Gloriana St. Clair, May 3, 2012, ¶¶ 5, 1012, 25.

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presumably be wasted because, for each book reviewed, the book might or might not
refer to the term, which might or might not be indexed in a book where it did appear.25 In
contrast, searching for “choke price” in Google Books reveals, for example, that the
concept is discussed in Austan Goolsbee’s chapter entitled “Subsidies and Broadbrand
Deployment” in Broadbrand: Should We Regulate High-Speed Internet Access (James H.
Alleman and Robert W. Crandall, editors), in addition to textbooks where one would
expect to find a discussion of choke price.26
18.

The introduction of Google Books to anyone with a computer and an internet connection
provided the benefit of being able to find books efficiently using particular search terms
chosen by the user. It thereby dramatically lowered the search costs of finding books.
This point can be seen by comparing searches within Google Books to traditional means
of finding books. Consumers have long browsed books in bookstores, for example, and
could flip through the text of a book on a shelf. But no given bookstore could display
more than a small fraction of the available books on a subject.27

19.

Libraries could hold more books than a typical bookstore. Historically, libraries
maintained index card catalogues of books. These cards recorded some basic information
about a book, but did not allow a user to search its text. Later, widespread adoption of
computers allowed library users to search words inside a title and subject heading, as well
as some other data regarding the book. Again, however, users could not search the text
of a book and could not necessarily choose the search terms that best suited their needs.28
By contrast, Google Books effectively indexes each book using every word that appears
in the book and allows users to search books according to their interests rather than a
specification provided by someone else. By doing this, Google brought a new good, a
text-searchable database of 20 million books, into being.29

25

Expert Report of Dr. Gloriana St. Clair, May 3, 2012, ¶¶ 15, 40.
A search for “choke price” on Google Books (with quotation marks) returns approximately 2,700 results, in
less than one second. While not every result will relate specifically to economics, this nevertheless
represents a significant time saving compared to older methods of search. https://www.google.com
/search?q=%22choke+price%22&btnG=Search+Books&tbm=bks&tbo=1#q=%22choke+price%22&hl=en
&tbo=1&tbm=bks&psj=1&ei=CF6hT5mgIo6i8gTe-cCECA&start=0&sa=N&bav=on.2,or.r_gc.r_pw.r_q
f.,cf.osb&fp=a9ec1c0f3e4f750d&biw=1024&bih=1167, search performed on May 2, 2012.
Expert Report of Professor Albert N. Greco, May 3, 2012, ¶ 13; and Expert Report of Bruce S. Harris, May
3, 2012, ¶ 9.
Deposition of Paul Courant, April 23, 2012, Rough Transcript, p. 92; Deposition of Paul Aiken, April 19,
2012, Rough Transcript, pp. 114-115; and Expert Report of Dr. Gloriana St. Clair, May 3, 2012, ¶¶ 40-44.
It is important to note that the search and index capabilities that define Google Books are feasible only
through the scanning and digitization of the underlying book in its entirety. In order to present results that
are relevant to each user’s search, the entire book must be scanned and digitized. Therefore, while it is true
that an input to Google Books is the scanned, digitized book in its entirety, the output, which represents the
actual use of Google Books, employs only small portions of the book, at most.
Google accomplished this in less than 10 years. By contrast, University of Michigan estimated that it
would take 900 years to digitize its collection of 8 to 9 million works. See Deposition of Paul Courant,
April 23, 2012, Rough Transcript, pp. 90, 97.

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20.

Google Books serves a different purpose than each of the constituent works that have
been scanned and indexed as part of Google Books. Each constituent work serves to
provide the reader content that expresses an author’s ideas. Google Books, by contrast, is
a text-searchable database that provides a means of searching for and identifying the
book or books that best suit a reader’s needs. Put differently, the complete collection of
indexed terms based on the universe of scanned materials can hardly serve as a substitute
for any individual book, and no full book can come close to providing the information
incorporated in the complete indexed collection.
B. The Effect of Google Books on Consumers

21.

As discussed above, a new good creates benefits that were not available with pre-existing
goods. Here, I discuss in more detail the nature of those benefits. Most importantly from
the consumer’s point of view, Google Books reduces the search costs associated with
finding relevant content.

22.

Economists generally distinguish between direct costs and indirect costs in a transaction.
Direct costs (or the “sticker price”) refer to the cost of the item itself, while indirect costs
can include search costs,30 transaction costs,31 or other ancillary costs that one or both
parties incur in order to effect the transaction. In some circumstances, these indirect costs
can be fairly insignificant; the purchase decision will depend exclusively or largely on the
direct cost. In other circumstances, however, these indirect costs can be quite significant,
so much so that their presence leads to different consumer choices than would be made in
the absence of these indirect costs.32

23.

Search costs can be particularly significant in the context of differentiated products such
as books. A consumer often needs to expend significant time and effort in order to
identify and locate the content that best matches her needs and interests.33 Even if the
direct cost of a book is one that the consumer is willing to pay, the search costs associated
with identifying and locating the right books may be prohibitively high for the consumer.
A consumer interested in the economics of new goods might be willing to pay the sticker

30

Search costs refer to the value of time expended as well as other costs associated with identifying and
locating a desired product. For example, a prospective employer may spend significant time at job fairs
meeting prospective employees and may also advertise in a newspaper.
Transaction costs refer to costs incurred in order to effect a desired transaction. These can include, for
example, the time spent entering personal and credit card information in order to purchase items online.
Consumers may choose one online vendor over another if their information is on file with one vendor, but
not the other.
See, for example, Erik Brynjolfsson, Yu (Jeffrey) Hu and Duncan Simester, “Goodbye Pareto Principle,
Hello Long Tail: The Effect of Search Costs on the Concentration of Product Sales,” Management Science,
2011, 57(8). The authors report: “[W]e find consumers’ usage of Internet search and discovery tools, such
as recommendation engines, are associated with an increase in the share of niche products. We conclude
that the Internet’s Long Tail is not solely due to the increase in product selection but may also partly reflect
lower search costs on the Internet. If the relationships we uncover persist, the underlying trends in
technology portend an ongoing shift in the distribution of product sales.”
See Expert Report of Professor Albert N. Greco, May 3, 2012, ¶ 12; Expert Report of Bruce S. Harris, May
3, 2012, ¶ 8; and Expert Report of Dr. Gloriana St. Clair, May 3, 2012, ¶ 7.

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price for any book that extensively uses the term “choke price,” for example, but be
unwilling (or unable) to spend hours in a bookstore or library finding the books that meet
her needs.
24.

Google Books has decreased the costs associated with identifying the content that best
fits a consumer’s needs. As a result, Google Books has enabled increased dissemination
of information and increased productivity.34 Increased productivity may yield other
tangible benefits such as accelerated progress in research and development. All of these
factors result in increased social welfare.

25.

Another benefit of Google Books relates to its ability to improve the match between the
consumer’s needs and the available content. The snippets provided by Google Books can
be viewed as a form of “informational” advertising that gives users the ability to find
content that is best-suited to their needs, and for authors to reach those users.

26.

As early as Alfred Marshall (1920), economists have examined the role of advertising in
consumer markets. Marshall identified “constructive” advertising as advertising that
conveys useful information to consumers in advance of a purchase.35 Later work has
developed models of advertising in which the role of advertising is to inform consumers
about the existence of a product or its characteristics.36 Under these circumstances, while
advertising can benefit the seller through increased revenues, advertising also benefits the
consumer, because advertising leads consumers to products that improve the consumer’s
utility.

27.

Empirical studies have demonstrated that many advertisements inform the consumer
about the existence of a product and its characteristics. This allows the consumer to
determine whether the advertised bundle of characteristics meets the consumer’s needs.

34

Deposition of Paul Aiken, April 19, 2012, Rough Transcript, p. 43; and Expert Report of Dr. Gloriana St.
Clair, May 3, 2012 ¶¶ 7, 44.
Alfred Marshall, Industry and Trade, MacMillan and Company, 1920.
See, for example, George Stigler, “The Economics of Information,” Journal of Political Economy, 1961,
69(3), pp. 213-225; Phillip Nelson, “Advertising as Information,” Journal of Political Economy, 1974,
82(4), pp. 729-754; and Gerard Butters, “Equilibrium Distributions of Sales and Advertising Prices,” The
Review of Economic Studies, 1977, 44(3), pp. 465-491. See also Gene Grossman and Carl Shapiro,
“Informative Advertising with Differentiated Products,” The Review of Economic Studies, 1984, 51(1), pp.
63-81: “…advertising does serve a useful social function; it informs customers about brands’
characteristics, and improves the matching of consumers and products,” p.77. Erdem and Keane (1996)
develop a model in which consumers who were exposed to more advertisements had better information and
were therefore more likely to persist with the most suitable alternative (Tulin Erdem and Michael Keane,
“Decision-Making under Uncertainty: Capturing Dynamic Brand Choice Processes in Turbulent Consumer
Goods Markets,” Marketing Science, 1996, 15(1), pp. 1-20.) Using data on 150 advertisements of Yoplait
yogurt, Ackerberg (2001) exploits variation in advertising effectiveness across consumers with different
levels of experience about a product to show that advertising that provides information about inherent
brand characteristics primarily affects inexperienced consumers. (Daniel Ackerberg, “Empirically
Distinguishing Informative and Prestige Effects of Advertising,” RAND Journal of Economics, 2001, 32(2),
pp. 316–333.)

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Exposure to advertising can improve the matching of consumers and products in a variety
of industries.37
28.

Google Books, therefore, functions like Marshall’s “constructive” advertising, in that it
informs a consumer about the existence of specific books that meet the consumer’s needs.
Of course, unlike most forms of advertising, in which advertising messages are “pushed”
to consumers, consumers affirmatively choose to undertake a search on Google to learn
about content relevant to that consumer’s particular interests and they are able to use
search terms that they choose rather than terms chosen for them. Thus, Google Books
can also lower a consumer’s search costs in finding a particular book.

29.

In this section, I have emphasized the benefit of Google Books to consumers. However,
as I discuss in more detail below, authors and publishers also generally benefit from the
existence of this advertising channel and from the lowering of search costs for
consumers.
C. Summary

30.

Google Books is, therefore, clearly a “new” good. Google Books provides consumers a
means of searching the entire text of works that are archived in the collection in order to
obtain information about the most relevant works for the consumer. Google Books as a
new good is related to, but distinct from, pre-existing goods. It is more comprehensive
and more accessible than previous indexing systems such as card catalogues or
computerized keyword search, and, unlike keyword search, it allows consumers to search
based on their interests rather than on criteria or descriptions created by others. This new
good creates benefits to consumers that were not previously available.
IV.

31.

The Effect of Google Books on Authors

In the previous section, I discussed the welfare benefits to consumers of Google Books.
In this section, I discuss the effect of the introduction of Google Books on authors. To
analyze this effect, I examine whether Google Books is a complement to the purchase of
books, or whether, by contrast, Google Books serves as a substitute for books. In
addition, I consider whether, in the absence of Google Books, other markets might have
arisen wherein authors could accrue rents that they do not currently accrue.
A. Google Books is a Complement – Not a Substitute – to the Purchase of a Book

32.

A major challenge faced by the author or publisher of a book is “getting noticed.”38
There are more books in print than any consumer could possibly read or use and more

37

For example, Ackerberg (2001) empirically examines advertising exposures and grocery purchases and
demonstrates that the advertising in that market’s primary effect was to inform consumers of the product’s
existence. Anand and Shachar (2011) find that exposure to informational advertising in the form of
television previews improves the match between consumers and their preferred network television shows.
(Bharat Anand and Ron Shachar, “Advertising, the Matchmaker,” RAND Journal of Economics, 2011,
42(2), pp. 205-245).

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than any physical bookstore could stock. The number of books released each year has
expanded,39 and some consumers presumably consider other educational or entertainment
options when deciding whether to search for and possibly purchase a book.
33.

As Mr. Bruce Harris, a publishing strategist and former President of trade sales and
marketing at Random House explains, publishers and authors recognize that, in order for
a book to have a market, consumers must first find or notice that book.40 A major role of
the publisher is to attempt to achieve consumer awareness of the publisher’s books.
Consequently, publishers employ many tools to generate publicity about the book and to
get the book noticed. These include: provision of excerpts (often longer than the typical
snippets at issue in this litigation) to publications and media outlets for use in articles and
book reviews, provision of “blads” (an acronym for “book layout and design”) to
booksellers and consumers, as well as substantial excerpts of forthcoming books on a
stand-alone basis or bundled with other promotional materials.41

34.

I understand that it is Mr. Harris’ view that the excerpts or snippets provided by Google
Books in response to a user’s search bear a resemblance to these mechanisms that
consumers may use to “find” a book. Whether a more extensive sample of text is
accessible (as in the case of the books that enter Google Books via the Partner Program)
or whether snippets are available, Google Books makes it easier for a book to get noticed,
which may increase demand for that book and benefit the author.42

35.

The capacity of Google Books to help authors get noticed is echoed by deposition
testimony provided in this case. Eric Zohn of William Morris Endeavor (WME), for
example, testified that “if people are searching for information and it becomes easy to
find your product in a very, very, very, very crowded marketplace where there are -- I
don’t even know the number of how many books are published every year, year after year
after year, I think any tool that helps readers or buyers find your product above someone
else’s is beneficial.”43

38

Expert Report of Bruce S. Harris, May 3, 2012, ¶ 7; and Expert Report of Professor Albert N. Greco, May
3, 2012, ¶ 12.
See, for example, “Print Isn’t Dead, Says Bowker’s Annual Book Production Report,” Press Release, May
18, 2011, available at http://www.bowker.com/en-US/aboutus/press_room/2011/pr_05182011.shtml,
accessed May 2, 2012. See also “European Book Publishing Statistics,” December 7, 2010, available at
http://www.fep-fee.be/documents/EUROPEANBOOKPUBLISHINGSTATISTICS2009websiteIEl.pdf,
accessed April 30, 2012.
Expert Report of Bruce S. Harris, May 3, 2012, ¶¶ 7, 14; and Interview with Mr. Bruce S. Harris, April 10,
2012.
Expert Report of Bruce S. Harris, May 3, 2012, ¶¶ 10-14; and Interview with Mr. Bruce S. Harris, April 10,
2012.
Expert Report of Bruce S. Harris, May 3, 2012, ¶¶ 14, 16; and Interview with Mr. Bruce S. Harris, April
10, 2012.
Deposition of Eric Zohn, April 13, 2012, p. 19. Paul Aiken, Executive Director of the Authors Guild, also
testified that snippets provided by Google Books may be helpful to consumers in finding books. See
Deposition of Paul Aiken, April 19, 2012, Rough Transcript, p. 120.

39

40
41
42
43

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36.

Further evidence of the benefit to authors of Google Books can be seen by the success of
the Google Partner Program, which has met the market test. That is, there is marketbased evidence that market participants – authors and publishers – see value in Google
Books, so much so that through the Partner Program, they have opted to have even larger
excerpts than snippets available for consumers to read. From an economic perspective,
the fact that publishers and authors participate in the program and provide such excerpts
is evidence that they expect their participation in Google Books to help authors get
noticed and to increase sales.

37.

In fact, all of the top publishers in the U.S. have become partners with Google Books.
According to Nielsen, a media industry research firm, the top publishers in the U.S. in
2011 were: Random House, Penguin Group, HarperCollins, Simon & Schuster, Hachette
Book Group, Macmillan, Scholastic, Perseus, John Wiley and Sons, Harlequin Books,
Houghton Mifflin Harcourt, Workman, Abrams, Kensington Publishing, and WW
Norton. These publishers accounted for over 70 percent of all books sold in the U.S. in
2011.44 All participate in the Partner Program.45

38.

There is also anecdotal evidence that inclusion of books in Google Books has resulted in
greater sales of those books. Publishers have noted increased sales of backlisted books.46
Authors have also noted increased awareness and sales of their books upon inclusion in
Google Books.47

39.

I have discussed the demonstrated eagerness of publishers to embrace Google Books
through the Partner Program. However, further market-based evidence that Google
Books benefits authors and publishers derives from the fact that authors and publishers
are eager, in a broad array of contexts, to provide excerpts of their works to readers, free
of charge. The simplest example of this pre-dates the internet technologies that I discuss
below. When book sales took place largely through physical bookstores, consumers were
almost always allowed (indeed encouraged) to sample the books before buying by
inspecting the book as displayed in the bookstore.48 In general, the amount of time that
consumers spent reading the book before buying was not limited by publishers or authors.

44

“U.S. Top 15 Publisher Sales Data,” Nielsen BookScan Report, received April 26, 2012.
The popularity and success of the Partner Program was also a topic of testimony by Google employee
Thomas Turvey. He testified that, in all, 45,000 publishers have joined the Partner Program, and that the
number of partners continues to grow. See Deposition of Thomas Turvey, February 17, 2012, p. 33. This
fact is further evidence that Google Books is beneficial to authors.
For example, Edward Crutchley, Book Sales Director at Blackwell Publishing noted that “[a] 1999
Blackwell's title, Metaphysics: An Anthology, has had 2,583 page views and 597 ‘buy this book’ clickthroughs since it became part of the program” and the “[t]he high rate of 'buy this book' clicks is translating
into sales for our deep backlist.” Evan Schnittman of Oxford University Press also noted an increase in
sales: “We have seen overall traffic to our site increase, backlist sales rise, and we've acquired nearly 4,000
new direct book customers for free since the program launched.” See http://books.google.com/intl
/en/googlebooks/thoughts.html, accessed April 17, 2012.
For example, Richard Lowry, author of The Gulf War Chronicles, observed that after his book first
appeared in Google Books, the sales ranking of his book on the Barnes & Noble index increased by 85
percent. See http://books.google.com/googlebooks/author_lowry.html, accessed April 30, 2012.
Expert Report of Bruce S. Harris, May 3, 2012, ¶ 15.

45

46

47

48

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Indeed, in more recent years, the location of coffee shops within bookstores appears to
encourage consumers to sample a book extensively before buying. Thus, searching
inside the book was always feasible, albeit limited to the stock of books in the bookstore
and the time that the consumer had to spend there.
40.

As consumers have turned to buying books online and downloading digital books as their
primary means of consumption, publishers and internet retailers have created
opportunities for consumers to sample excerpts of books.49 Specific evidence that
authors expect to benefit from the provision of excerpts to readers can be seen in the
success of Amazon’s “Search Inside The Book” program. “Search Inside The Book”
allows users to search the full text of certain books for specific search terms and to view
excerpts of the book that contain the search term.50

41.

Many of the top U.S. publishers discussed above also use Amazon’s “Search Inside The
Book” feature for books that they publish. The fact that publishers and authors
voluntarily provide extensive on-line access to users suggests that publishers and authors
expect, on net, that doing so will help authors get noticed and provide a positive return.
This is further market-based evidence that providing readers with excerpts of books helps
to sell books.

42.

In fact, Amazon reported that following the introduction of its “Search Inside The Book”
program, sales of books with the “Search Inside The Book” capability increased by nine
percent, relative to books without the “Search Inside The Book” capability.51 Frank
Urbanowski, Director of MIT Press, observed that the increased accessibility to backlist
titles through the internet had resulted in a 12 percent increase in sales of these titles.52
Similarly, Nora Rawlinson, the editor of Publishers Weekly, noted: “Publishers are
finding that books on their backlists are suddenly selling well. Bookstores are great for
browsing but they are difficult places to find a specific title…The Internet is providing
access for people who just can’t find the book they are looking for in a store.”53

43.

The benefits to authors of providing users the ability to read excerpts of books is also
evidenced by the structure of the “Back In Print” program which is provided by iUniverse
and promoted by the Authors Guild. Under the “Back in Print” program, authors provide
a hard copy of their out-of-print book to iUniverse, which digitizes the book and

49

Expert Report of Bruce S. Harris, May 3, 2012 ¶ 13; Interview with Mr. Bruce S. Harris, April 10, 2012;
Expert Report of Professor Albert N. Greco, May 3, 2012, ¶ 14; and Deposition of Paul Aiken, April 19,
2012, Rough Transcript, pp. 145-146.
See http://www.amazon.com/Search-Inside-Book-Books/b?ie=UTF8&node=10197021, accessed May 4,
2012.
“Amazon.com Announces Sales Impact from New Search Inside the Book Feature,” October 30, 2003,
available at http://phx.corporate-ir.net/phoenix.zhtml?c=176060&p=irolnewsArticle&ID=502769 &high
light=, accessed April 30, 2012.
Professional Publishing Report, “University Presses Credit Internet For Increased Sales,” 1999, 3(2).
Michael Lyster, “Printed Words Get Redefined In Digital Age,” Investor’s Business Daily, Computers and
Technology Section, Page A6, June 2, 1999.

50
51

52
53

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facilitates the production of new, print-on-demand hard copies.54 The Authors Guild
recommends that authors participating in the “Back In Print” program should make the
first chapter of the book available for browsing online, because it “believe[s] that
allowing a book to be browsed in this way promotes the sale of the book.” 55
44.

All these observations about Google Books, Amazon’s “Search Inside The Book,” and
iUniverse, are consistent with what economic theory would predict. Google Books is a
search tool that gives consumers a means of identifying the book content that best suits
their needs and interests. Economic theory predicts that technologies and processes that
lead to better matches between buyers and sellers will, in general, lead to increased
revenues (lower search costs lead to more search and better search). As a matter of
economics, we would also expect that when a better match can be made between buyers
and sellers, sellers will be able to sell more goods and command a higher price for the
good. That is, a consumer is willing to pay more for a book that the consumer
understands contains exactly the material (or the aesthetic experience) that the consumer
is seeking than the consumer is willing to pay for a book that the consumer is uncertain
about, or understands is an imperfect fit.56

45.

I have described a number of mechanisms through which publishers and authors
affirmatively choose to provide snippets and samples of book content to consumers in
order to drive sales of those books. As I explained, Google Books also offers sampling
opportunities that publishers and authors have found to be valuable. Some of the
sampling methodologies that I have discussed (such as Amazon’s “Search Inside The
Book”) are, in part, a response to a change in the way at least some consumers buy
books.57 Mechanisms like “Search Inside The Book” and the Google Partner Program
have been embraced by publishers. These are not only a means of improving upon the
traditional within-store browsing experience, they also provide mechanisms for
promoting books beyond those that would have been stocked by any or many traditional
physical books.

46.

A related benefit of the search capability of Google Books is its ability to increase
interest in and sales of books that may be relatively unknown, rare, or out-of-print.
Research on the effect of the internet supports the theory of a “long tail” or the creation
of marketplaces where buyers and sellers, who otherwise would not find each other, can
meet.58 I expect that Google Books has the same effect.

54

Deposition of Paul Aiken, April 19, 2012, Rough Transcript, pp. 172 – 173.
Deposition of Paul Aiken, April 19, 2012, Rough Transcript, p. 175.
For example, Erdem et al. (2007) use Nielsen scanner data on various consumer experience goods to show
that advertising raises consumers’ willingness to pay for a brand. (Tulin Erdem, Michael Keane and
Baohong Sun, “The Impact of Advertising on Consumer Price Sensitivity in Experience Goods Markets,”
Quantitative Marketing and Economics, 2007, 6 (2), pp. 139-176.
Expert Report of Bruce S. Harris, May 3, 2012, ¶ 9.
For a discussion of the “long tail” in the popular media, see, for example, Chris Anderson, The Long Tail:
Why the Future of Business Is Selling Less of More, Hyperion, 2006; and Chris Anderson, “The Long Tail,”
Wired, October 2004: “What's really amazing about the Long Tail is the sheer size of it. Combine enough

55
56

57
58

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47.

While I do find substantial evidence that Google Books is a complement to the purchase
of a book and thus, should stimulate book sales, I have not found evidence that Google
Books searches are a substitute for the purchase of books. That is to say, there is no
reason to expect that authors have actually lost sales as a result of Google Books.
Furthermore, I have seen no evidence that the snippets provided by Google Books –
which are shorter than excerpts often voluntarily provided by publishers – have replaced
sales of the underlying work.59 On the basis of the discussion above, I conclude that
Google Books is a complement to the underlying books, and would therefore be expected
to increase sales of the underlying books. I conclude that Google Books benefits authors.
B. Had Google Not Developed Google Books, It is Likely that No Alternative
Market Would Have Arisen

48.

A related question to the one discussed above is whether, in the absence of Google
Books, a market might have arisen in which authors stood to benefit in ways that they do
not currently. I understand, in particular, that Plaintiffs argue that, were it not for Google
Books, a market could have arisen in which firms would compete for rights to scan and
index books; firms would pay authors for the right to scan and index their works, and
perhaps display snippets; and any rents that would accrue (say, from advertising revenue
or click-through royalties) would be shared with the author.

49.

The underlying premise of any such hypothetical market runs counter to the basic
economics of this industry outlined above – there is no reason to expect that a market
would arise between copyright holders (as sellers) and Google (as the buyer), when, as
discussed above, it is the copyright holder who is benefiting from the use of the
copyrighted material.60 For example, as discussed above, Amazon does not pay rights
holders for allowing their books to be searched via the “Search Inside The Book”
program, yet authors and publishers opt to allow books to be searched and they do so
without payment.61 62 In contrast to this evidence of market participants transacting to

59
60
61

non\hits on the Long Tail and you've got a market bigger than the hits. Take books: The average Barnes &
Noble carries 130,000 titles. Yet more than half of Amazon's book sales come from outside its top 130,000
titles. Consider the implication: If the Amazon statistics are any guide, the market for books that are not
even sold in the average bookstore is larger than the market for those that are…” For academic research on
the “long tail,” see, for example, Erik Brynjolfsson, Yu (Jeffrey) Hu, and Duncan Simester, “Goodbye
Pareto Principle, Hello Long Tail: The Effect of Search Costs on the Concentration of Product Sales,”
Management Science, 2011, 57(8): “The Internet channel’s ability to allow consumers to acquire product
information with greater convenience and at lower costs leads to increased demand for niche products.
Many offline book shoppers do not search deeply, simply because of the inconvenience of locating a niche
product in a big-box store with thousands of products on its shelves;” and Anita Elberse and Felix
Oberholzer-Gee, “Superstars and Underdogs: An Examination of the Long-Tail Phenomenon in Video
Sales,” Marketing Science Institute, 2007.
Publishers presumably provide excerpts because, in their business judgment, these excerpts will, on net, be
complements to the actual book, not substitutes.
See also Expert Report of Bruce S. Harris, May 3, 2012, ¶¶ 17-18; and Expert Report of Professor Albert
N. Greco, May 3, 2012, ¶15.
Indeed, some commercial services offer programs in which they charge authors fees to facilitate the
searching of an author’s book using Google or Amazon. iUniverse, which the Authors Guild recommends

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allow search without payment, I have seen no evidence that any firm has paid, for
example, for permission to display snippets.63
50.

These facts suggest that authors and publishers recognize that search functionality, and
particularly tools that enhance an author’s ability to get noticed, provide benefits that
flow to the author. This behavior is consistent with the conclusion that Google Books
complements the sale of books rather than substituting for such sales. It does not stand to
reason, then, that a market should arise in which payments would flow from the providers
of these tools – like Google Books – to authors.64

51.

With respect to libraries, I understand from Dr. St. Clair, the Dean of Libraries at
Carnegie Mellon University, that, in her view, there was and is no likelihood that libraries
will seek permission to digitize books merely for search or snippet display. First, when
libraries have undertaken digitization efforts, it has been for the purpose of displaying the
full text of certain books. To the extent libraries have licensed digitization, it has been
for such full-text display.65 From an economic perspective, the display of the full text of
a book differs significantly from the search of a book’s text or the display of snippets or
other mere portions of a book. Full-text display of a book may well substitute for the
purchase of a book, while the preceding analysis shows that search, snippet display, or
even the greater display of excerpts authorized by publishers, does not.

52.

Second, historically libraries have not focused on comprehensive digitization efforts.
They have instead focused on public domain works or works of particular institutional or

62
63

64

65

to its members, is one such company. Deposition of Paul Aiken, April 19, 2012, Rough Transcript, pp. 139140, 176-177. For-fee services are also offered by iUniverse to assist authors in participating in Google
Books, Amazon’s “Search Inside The Book,” and Barnes & Noble’s “See Inside the Book” programs. See,
for example, http://www.iuniverse.com/Servicestore/ServiceDetail.aspx?ServiceId=BS-471, accessed April
27, 2012 and http://www.iuniverse.com/Servicestore/ServiceDetail.aspx?ServiceId=BS-911, accessed May
2, 2012. In addition to offering these services, which help authors get noticed by consumers, iUniverse also
offers a service to assist authors in getting noticed by book buyers, librarians, and researchers. See
http://www.iuniverse.com/Servicestore/ServiceDetail.aspx?ServiceId=BS-538, accessed May 2, 2012.
Even the Authors Guild recommends that authors make a portion of their books searchable. See Deposition
of Paul Aiken, April 19, 2012, Rough Transcript, p. 176.
Author’s Guild representative Paul Aiken was unable to identify such an example. Deposition of Paul
Aiken, April 19, 2012, Rough Transcript, pp. 131-134. In contrast to the interactions we observe between
publishers, authors, and Google and Amazon, music rights organizations like ASCAP and BMI arose as a
solution to the problems of widely dispersed rights holders and widely dispersed music users. Music
performance users consist of such disparate entities as radio stations, background music service providers,
bars, restaurants, bowling alleys, and skating rinks. This dispersion of the potential licensees makes it
prohibitively costly for rights holders to identify, negotiate with, and monitor all of the potential users of
their music. Thus, the rights organization serves to coordinate and mediate the market in a far more costeffective manner than if the rights holders and the potential infringers each had to negotiate separately. As
distinct from music, widely dispersed users that would be costly to monitor do not exist for books.
Plaintiffs have argued that Congress (or another government agency) could create a new compulsory
licensing regime. While perhaps true, nothing that Google has done precludes this from occurring, and the
preceding analysis suggests that such a market could only be created by law because the relevant economic
principles would not sustain it otherwise.
Expert Report of Dr. Gloriana St. Clair, May 3, 2012, ¶¶ 5(a), 5(c), 25.

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local interests. Resource constraints have also limited such efforts. One general project
preceding Google Books, at the University of Michigan, was estimated to require 900
years to complete.66
53.

Third, libraries’ experience with rights clearance has shown that, to the extent clearance
is required for digitization, it is prohibitively costly to create a comprehensive digital
resource such as Google Books. Carnegie Mellon University, Harvard University, and
Cornell University have all reported great difficulty in finding rights holders.67 68 Such
limitations reduce the comprehensiveness, and thus the utility, of library digitization
efforts relative to Google Books. These are also the type of costs that can make market
participation infeasible for institutions that cannot bear those costs.

54.

On the basis of the discussion above, I conclude that because the provision of snippets or
excerpts is beneficial to authors, no market would arise in which payments flow from the
provider of these tools, such as Google, to the author. I furthermore conclude that a
market in which libraries would pay for the right to scan and index their entire collection
for the purpose of search and snippet display is not likely to arise.

___________________________________
Judith A. Chevalier
May 4, 2012
66
67

68

Deposition of Paul Courant, April 23, 2012, Rough Transcript, pp. 90, 97.
See Letter from Sarah E. Thomas, Carl A. Kroch University Librarian at Cornell University to Jule L.
Sigall, Associate Registrar for Policy & International Affairs at the U.S. Copyright Office, Re: Response by
the Cornell University Library to the Notice of Inquiry Concerning Orphan Works, dated March 23, 2005,
available at http://www.copyright.gov/orphan/comments/OW0569-Thomas.pdf, accessed May 1, 2012.
See also Letter from Sidney Verba, Director, Harvard University Library and Pforzheimer University
Professor at Harvard University to Jule L. Sigall, Associate Registrar for Policy & International Affairs at
the U.S. Copyright Office, Re: Response by the Cornell University Library to the Notice of Inquiry
Concerning Orphan Works, dated March 25, 2005, available at http://www.copyright.gov/orphan/
comments/OW0639-Verba.pdf, accessed May 1, 2012. See also Denise Troll Covey, “Acquiring
Copyright Permission to Digitize and Provide Open Access to Books,” Digital Library Federation Council
on Library and Information Resources, Washington, D.C., October 2005.
In some cases even publishers are not clear on whether they own the rights to a book, meaning that even
permissions that may be obtained carry some degree of risk that they are unreliable. See Expert Report of
Dr. Gloriana St. Clair, May 3, 2012, ¶ 36.

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DURIE T ANGRI LLP
DARAL YN J. DURIE (Pro Hac Vice)
[e-mail]
JOSEPH C. GRATZ (Pro Hac Vice)
[e-mail]
DAVID McGOWAN (Pro Hac Vice)
[e-mail]
GENEVIEVE P. ROSLOFF (Pro Hac Vice)
[e-mail]
217 Leidesdorff Street
San Francisco, CA 94111
Telephone:
415-362-6666
Facsimile:
415-236-6300
Attorneys for Defendant
Google Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
THE AUTHORS GUILD, INC., Associational
Plaintiff, BETTY MILES, JOSEPH
GOULDEN, and JIM BOUTON, on behalf of
themselves and all other similarly situated,
Plaintiffs,

v.

Civil Action No. 05 CV 8136 CDC)
ECFCase

GOOGLE INC.,
Defendant.

DECLARATION OF DAN CLANCY IN SUPPORT OF DEFENDANT GOOGLE INC.'S
MOTION FOR SUMMARY JUDGMENT

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I, Dan Clancy, hereby declare under penalty of perjury:
1.

I am an Engineering Director at Google Inc. I submit this declaration in support

of Defendant's Motion for Summary Judgment. I make this declaration based on personal
knowledge of the facts and circumstances set forth herein.
2.

I have been involved in the Google Books project since January of2005. I had a

central role in managing the development of that project. In addition to engineering, I have been
involved in virtually all other areas of the Google Books project, and am familiar with its
development and operation.

I.

THE PURPOSE OF GOOGLE BOOKS
3.

Google Books was born of the realization that much of the store of human

knowledge lies in books on library shelves and thus is very difficult to find. Research libraries
house millions of books. These works span all types: most are academic publications; most are
out of print; many were obscure even when first published. Despite the importance of these vast
stores of human knowledge, there exists no centralized way to search these texts to identify
which might be germane to a particular topic.
4.

Google Books aimed to solve that problem by giving everyone access to an index

of these books. Armed with the results of a search of that index, users can borrow or buy those
books of particular interest to them, either in hard copy from a bookstore down the street or in
digital form if the book is so sold. (Of course, if the book is in the public domain, the user may
read the book on Google Books for free.)

II.

BUILDING GO OGLE BOOKS
5.

In order to build that index, in 2004, Google began scanning books in the

collections of several significant research libraries, including the University of Michigan and the
University of California. Google entered into agreements with these libraries pursuant to which

2

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the libraries' books would be scanned, after which the physical copies of the books would be
returned to the libraries. The agreements also provide a mechanism for the libraries to make
digital copies of the scans of their own books for their own uses, and the libraries promise
contractually to abide by the copyright laws with respect to those copies that they make. A true
and correct copy of one such agreement, with the University of Michigan, is attached hereto as
Exhibit A.
6.

A book is scanned at one of a small number of scan centers. Physical access to

the centers is limited to Google employees and contractors. Google analyzes each scan and
creates an overall index of all the books that have been scanned. This index links the words or
phrases appearing in each book with all of the locations in all of the books in which that word or
phrase is found. It allows a search for a particular work or phrase to return a result that includes
the most relevant books in which that word or phrase is found.

III.

USING GOOGLE BOOKS
7.

Google Books allows a user to search the full text of the Google Books corpus

using a query of the user's own design. A search for "Archimedes" using Google Books, for
example, locates many thousands of books in less than one second, and returns the most relevant
books that contain any reference to Archimedes. This result can only be achieved by digitizing
the full text of the books contained in the index. Without digitizing the whole book, there is no
way to know whether a particular book mentions Archimedes (unless Archimedes happens to be
one of the few subject headings assigned to the book by the librarian who cataloged it) without
spending thousands of hours reading the index at the back of every book about ancient Greece
(and even then one would miss the mention of Archimedes in, for example, novels).
8.

When a user performs a search, Google Books uses the index to generate search

results for a user's query, returning a list of books in which that user's search term appears.

3

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Attached hereto as Exhibit B is a true and correct copy of a search results page for the query
"Steve Hovley." This screen shot, as well as the others in this declaration, was taken on July 7,
2012; many factors may cause search results to change over time, so the results may be different
if that search is run at a different time.
9.

A user can click on a particular result to be directed to an "About the Book" page,

allowing the user to obtain more information about the book in question. This page includes
links to sellers of the book and/or libraries listing the book as part of their collections. No
advertisements have ever appeared on any About the Book page for any book that is part of the
Library Project. Attached hereto as Exhibit C is a true and correct copy of a portion of an About
the Book page that is displayed when one clicks on Ball Four in the search results page pictured
in Exhibit B.
10.

In some cases, users will also see text from the book. Ball Four is in "snippet

view," so the user looking for books which discuss Steve Hovley can see, on the About the Book
page, that there are 34 references to Hovley in the book, and can see three of those references in
the context of short "snippets," each about an eighth of a page long. Attached hereto as Exhibit
D is a true and correct copy of a different portion of the About the Book page depicted in Exhibit
C, showing the snippets which are displayed.
11.

Not all books are placed in "snippet view." Works whose text is organized in

short "chunks"-for example, dictionaries, cookbooks, and books of haiku-are excluded from
snippet view altogether. This determination is made by human operators who examine each
book to ascertain whether it is organized in short "chunks," and no book is designated for
"snippet view" without such a manual review. Google also excludes works a rightsholder has
asked Google not to display and renders the text of those books unsearchable. Any rightsholder

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can exclude a book simply by filling out an online form which was been available since 2005.
12.

For excluded works, users may view bibliographic information about the book but

not text from the book itself. For example, Google has scanned several editions of Black's Law
Dictionary, but none are searchable or viewable, as indicated by the "No preview" designation in
the screenshot below-except the 1910 edition, which is in the public domain. Attached hereto as
Exhibit E is a true and correct copy of an excerpt from a search page for "Black's Law
Dictionary." Public domain books like the 1910 edition of Black's Law Dictionary can be
viewed and downloaded in their entirety.
13.

Rightsholders may also request that Google display more text through the Partner

Program. The rightsholder can choose what percentage of the text of the book to displayusually at least 20%. For example, Jim Bouton's book Foul Ball is in the Partner Program, and
his publisher has chosen to allow some pages to be viewed. Attached hereto as Exhibit F is a
true and correct copy of a page showing Foul Ball in Partner Program preview.
14.

Over 45,000 publishers have included works within the Partner Program,

including HarperCollins, Penguin, Simon & Schuster, and Macmillan.
15.

Many users find Google Books to be of great assistance in performing traditional

research tasks. Attached hereto as Exhibit G is a true and correct copy of a web page at
http://books.google.comlgooglebooks/testimonials.html reflecting user comments on Google
Books.The corpus has enabled new types of research as well. Text from the books was used as
an input to the lin-grams" research project. This project examines how frequently different terms
or phrases appear in books published at different times. Attached hereto as Exhibit H is a true
and correct copy of Jean-Baptiste Michel et aI., Quantitative Analysis of Culture Using Millions
of Digitized Books, 331 SCIENCE 176 (2011), available at

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http://www.sciencemag.orglcontent/early/2010/12/15/science.1199644. I participated in the
development of the "n-grams" project, and am named as one of the authors of that paper.
I declare under penalty of peljUl'y under the laws of the United States of America that the
foregoing is true and correct.
Executed on this~ day of July, 2012 at Mountain View, California.

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EXHIBIT A

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COOPERATIVE AGREEMENT
COOPERATIVE AGREEMENT

This COOPERATIVE AGREEMENT (the =Agreement") entered into by and between Google Inc., a
This COOPERATIVE AGREEMENT (the "Agreemenf') is is entered into by and between Google Inc., a
Delaware corporation with otT~ces 1600 Amphitheatre Parkway, Mountain View, Califomia 94043
Delaware corporation with offICeS atat 1600 Amphitheatre Parkway, Mountain View,Califomia 94043
(=Google"), and the Regents of the University of Michigan/University L~rary, Ann Arbor Campus, with its
("Googlej, and the Regents of the University of Michigan/University Library, Ann Arbor Campus, with its
principal offices at 818 Hatcher South, Ann Arbor, MI 48109-1205 ("U M"), and is effective on the date
principal offices at 818 Hatcher South, Ann Arbor, M148109-1205 ("U ofof M’), and is effective on the date
of the execution of this Agreement (the =Effective Date"). Google and U of M herein are sometimes
of the execution of this Agreement (the aEffective Datej. Google and U of M herein are sometimes
referred to hereinatter individually as a =Party" and collectively as the "Parties’.
referred to hereinafter IndMdually as a ·Party" and collectively as the aparties".

1.

2.

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

3.

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

4.

•

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

Accordingly, the Parties desire to enter nonexclusive agreement whereby Google will digitize works
Accordingly, the Parties desire to enter aanonexclusive agreement whereby GoogleWiIl digitize works
from lhe U of M collection to include them in Google’s search services, and make them available to
from the U of M collection to include them in Google's search services, and toto make them available to
the University of Michigan for preservation, archival other purposes of its choosing (e.g., inclusion
the University of Michigan for preservation. archival oror other purposes of its choosing (e.g., inclusion
in Michigan’s search services).
in Michigan's search services).

1.
DEFINITIONS. Capitalized terms will have the meanings set forth below unless defined
1.
DEFINITIONS. Capitalized terms will have the meanings set forth below unless defined
elsewhere in the Agreement.
elsewhere in the Agreement.
1.1 •Available
means the U of M print book and joumal Collection, but excludes Special
1.1 "Available Content" means the U of M print book and joumal Collection, but excludes Special
Collections materials. Available Content also includes U of M Digital Content an amount corresponding
Collections materials. Available Content also includes U of M Digital Content inin an amount corresponding
to the amount of digital content that Google provides U of M via the U of M Digital Copy.
to the amount of digital content that Google provides toto U of M via the U of M Digital Copy.
1.2 "Brand Features" means trade names, trademarks, service marks, loges, and other distinctive
1.2 "Brand Features» means trade names, trademarks, service marks, logos, and other distinctive
brand features, of which Google’s Brand Features include but are not limited Google, the Google logo,
brand features, of which Google's Brand Features Include but are not limited to to Google, the Google logo,
other marks that incorporate the word "GOOGLE," PAGERANK, and which U of M's brand features
other marks that incorporate the word "GOOGLE: PAGERANK, and ofof which U of M’s brand features
include but are not limited to the University of Michigan name, University Michigan identification marks,
include but are not limited to the University of Michigan name, University ofof Michigan identification marks,
and the University Library name and logo.
and the University Library name and logo.
1.3 "D~itize" means to convert content from tangible, analog form into digital representation
1.3 "Digitize" means to convert content from aatangible, analog form into a a digital representation
of that content.
of that content.
1.4 "Distribution Price" means amount equal to or greater than a per-page amount multiplied
1.4 '"Distribution Price" means an an amount equal to or greater than a per-page amount multiplied
by the number of Digitized pages Involved. The per-page amount shaR bebe equal to the amount charged
by the number of Digitized pages involved. The per-page amount shall equal to the amount charged
by Google for distributing to the general public the same Digitized pages ("Google Amount"). If If there
by Google for distributing to the general public the same Digitized pages (=Google Amount"). there
exists no Google Amount for the sarne Digitized pages, the per-page amount shall be the amount
exists no Google Amount for the same Digitized pages, the per-page amount shall be the amount
charged by Google for distributing to the general public similar pages digitized pursuant to to the same
charged by Google for distributing to the general public similar pages digitized pursuant the same
Project Plan ("Similar Google Amount"). To the extent no Google Amount or Similar Google Amount
Project Plan (=Similar Google Amount"). To the extent no Google Amount or Similar Google Amount
exists, the per-page amount shall be an amount mutually agreed upon in in good faith by Google and
exists, the per-page amount shall be an amount mutually agreed upon good faith by Google and
UofM.

1.5 "End Use~ means aaperson or entity that uses the Services.
1.5 "End User" means person or entity that uses the Services.

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1.6 "Enterprise Search Services" means the Search Services provided by Google to companies
1.6 "Enterprise Search Services" means the Search Services provided by Google to companies
for use by employees of those companies and others.
for use by employees of those companies and others.
1.7 "Goo~le Di_~ital Copy" means digital copy retained by Google of the Available Content that
1.7 "Goog!e Digital CoDY" means a a digital copy retained by Google of the Available Content that
is Digitized by Google.
is Digitized by Google.

•

1.8 =Goo!:lle Seamh Services" means the Search Services provided by Google directly through
1.8 "Gooale Search Services" means the Search Services provided by GoogJe directly through
the web sites located at www.~oo~lle.com and corresponding intemational and other domains (e.g.,
the web sites located at www.gooale.com and corresponding International and other domains (e.g.,
www..qoo.qle.de, www..~oo~le.info, etc).
www.gooale.de, www.gooole.info, etc).

au

1.9 of M Collection". means materials identified section 1.2 above.
1.9 "U of M Collection". means materials identified In in section 1.2 above.
1.10 au of M Digital CopY' means a digital copy transferred by Google to U of of the
1.10 "U Of M Digital Copy" means a digital copy transferred by Google to U of MM ofthe
Available Content that is Digitized by Google.
Available Content that is Digitized by Google.
1.11 ·Partner Search Services" means the Search Services provided Google to to End
1.11 "Partner Search Services"means the Search Services provided by by Google an an End
User via partner site that has entered into agreement with Google to to provide some or all of
User via aapartner site that has entered Into anan agreement with Googleprovide some or all of the the
Search Services through its own website.
Search Services through its own website.
1.12 ·Pilot Project" means the onsite work at the University Michigan, beginning from the
1.12 "Pilot Project" means the onsite work at the University ofof Michigan, beginning from the
Effective Date of this contract and ending on April 15, 2005.
Effective Date of this contract and ending on Apr" 15, 2005.
1.13
1.13

"Pro~ means a project for Digitizing certain Selected Content.
'Projecr means a project forDigitizing certain Selected Content.

1.14
1.14

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

1.15 "Project Form" means form, pursuant to this Agreement, that contains the details of
1.15 "Project Form" means aaform, pursuant to this Agreement, that contains the details of aa
Project Plan, similar to the sample attached as Exhibit A.
Project Plan, similar to the sample attached as Exhibit A.
1.16 "Project Plan" means a plan for implementing a ProjecL The Project Plan shall include
1.16 "P.roject Plan" means a plan for Implementing a Projecl The Project Plan shan include
the following: (1) instructions by U of M regarding how the Selected Content to be collected and
the following: (1) instructions by U of M regarding how the Selected Content is is to be collected and
retumed by Google; (2) if required, the amount time available to U U M for performing conservation
returned by Google; (2) if required, the amount ofof time available to of of M for performing conservation
efforts; (3) the amount of time available to Google from receipt the Selected Content unbl it it due to be
efforts; (3) the amount of time available to Google from receipt ofof the Selected Content until is is due to be
returned to U of M; and (4) budget for the Project.
returned to U of M; and (4) aabudget for the Project.
party.
party.

1.17 "Requested Portion" means a portion of the U of M Digital Copy requested by a a third
1.17
"Requested Portion" means a portion
Digital Copy requested by third

1.18 "Search Services" means the search services provided byby Google to an End User
1.18
"Search Services" means the search services provided Google to an End User
pursuant to which the End User can view, inter alia, content consisting ofof or dedved from the Google
pursuant to which the End User can view, inter alia, content consisting or derived from the Google
Digital Copy (subject to the restrictions set forth in this Agreement) in response to search or browsing
Digital Copy (subject to the restrictions set forth in this Agreement) in response to search or browsing
requests.
requests.

•

1.19 "Selected Content" means the portion of the Available Contentthat Google desires toto
1.19
"Selected Conten.- means the portion of the AvaUable Content that Google desires
Digitize or incorporate into the Services, both coUectively and its component parts, Including any and allall
Digitize or incorporate into the Services, both collectively and its component parts, including any and
other works of authorship included therein.
other works of authorship included therein.

1.20 =Services" means collectively the Google Search Services, the Partner Search Services,
1.20 "Services" means collectively the Google Search Services, the Partner Search Services,
and the Enterprise Search Services.
and the Enterprise Search Services.
1.21 ".U,,of M Digital Content" means content that U of MM already has in itspossession inin
1.21
au of M Digital Content" means content that U of already has in its possession
Digitized form, a~ of the Effective Date.
/);gmzed form, m; af the Effective Date,
1.22 WVebsit____._ee," =World Wide Web," "theIntemet: and other technical terms in this Agreement
122
'Website; 'World Wide Web,B"the Interne_t," and other technical terms in this Agreement
and project plans refers to the current common usage of such terms and successor facilities ofof equal or
and project plans refers to the current common usage of such terms and successor facilities equal or
greater capability.
greater capabHlty.

CONFIDENTiAl
CONFIDENTIAL

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RESPONSIBILITIES
RESPONSIBILITIES

2.1 Identifying Content to be Digitized. The parties shall cooperate to identify Available
2.1 Identifying Content to be Digitized. The panes shall cooperate to identify Available
Content to be Digitized. Upon agreeing to such Selected Content, the Parties shall cooperate in good
Content to be Digitized. Upon agreeing to such Selected Content, the Parties shall cooperate in good
faith and with diligence to develop timetable for completing the Project Plan for the Selected Content.
faith and with diligence to develop a a timetable for completing the Project Plan for the Selected ContenL
The Parties shall then memorialize the Project Plan a Project Form.
The Parties shall then memorialize the Project Plan Inin a Project Form.
2.2 Collecting the Selected Content. Upon commencement of a Project, of M shall be
2.2 Collecting the Selected Content. Upon commencement of aProject, UU of M shall be
responsible for performing any conservation efforts that of M determines are required for the associated
responsible for performing any conservation efforts that U U of M determines are required for the associated
Selected Content. On a rolling basis, as this conservation effort completed, U of M shall provide the
Selected Content. On a rolling basis, as this conservation effort isis completed, U of M shall provide the
conserved Selected Content Google for Digitizing. If agreed upon by the parties in in a particular Project
conserved Selected Content toto Google for Digitizing. If agreed upon by the parties a particular Project
Plan, this collection function may instead be assigned to Google.
Plan, this collection function may instead be assigned to Google.
2.3 Locating the Digitization Operation. For each Project, U of M shall attempt good faith to
2.3 Locating the Dlgitlzation Operation. For each Project, U of M shall attempt in in good faith to
provide Google with adequate physical space DlglUze the Selected Content. If If U M is unable to
provide Google with adequate physical space to to Digitize the Selected Content. U of of M is unable to
provide such space, U of M shall cooperate with Google identify and obtain space that Google can use
provide such space, U of M shan cooperate wHh Google toto identify and obtain space that Google can use
at reasonable rates. The location of any such physical spaces shall be mutually agreed upon the
at reasonable rates. The location of any such physical spaces shall be mutually agreed upon byby the
panes.
parties.

•

2.3.1 Transporting and Storing the Selected Content. On a Project-specific and
2.3.1 Transporting and Storing the Selected Content On a Project-specific and
material-specific basis, U of M may authorize Google remove some or all of the Selected Content from
material-specific basis, U of M may authOrize Google toto remove some or all of the Selected Content from
U of M premises to perform digitization facUities controlled by Google. All risk of loss, damage, or
U of M premises to perform digitizalion inin facilities controlled by Google. All risk of loss, damage, or
destruction of the materials will lie with Google from the time Google accepts possession the materials
destruction of the materials will lie with Google from the time Google accepts possession ofof the materials
until such time as they are returned to U of M on of M premises. Google will carry reasonably sufficient
until such time as they are returned to U of M on UU of M premises. Goagle will carry reasonably sufficient
insurance against the risk of loss, damage or destruction malerials entrusted to Google's custody. In
insurance against the risk of loss, damage or destruction ofof materials entrusted to Google’s custody. In
general, for all materials, Google wDI provide a a transport method and temporary storage area that is
general, for all materials, Google will provide transport method and temporary storage area that is
reasonably clean, dry, cool, free from insects and other pests, protected from fire, and secure against
reasonably clean, dry, cool, free from insects and other pests, protected from fire, and secure against
theft and vandalism. Because the value of the materials and the environmental conditions necessary for for
theft and vandalism. Because the value of the materials and the environmental conditions necessary
iransporting them and maintaining them iningood condition will vary based on the particular materials
transporting them and maintaining them good condition will vary based on the particular materials
involved, U of M will inform Google of the requirements for transport and storage particular materials on
involved, U of M will inform Google of the requirements for transport and storage of of particular materials on
a Project-specific basis. For insurance purposes, of M (relying on guidelines from its Risk Management
a Project-specific basis. For insurance purposes, UU of M (relying on guidelines from its Risk Management
office) will provide Google with aagood faith estimate ofof the value of any materials approved for removal
office) will provide Googia with good faith estimate the value of any materials approved for removal
from U of M premises, and will provide Google with an itemized list of any such materials.
from U of M premises, and will provide Google with an itemized list of any such materials.
2.3.2 On-Site (i.e., not transported) Conversionof Selected Content The terms in in
2.3.2 On-Site (i.e., not transported) Conversion of Selected Content. The terms
2.3.1 regarding insurance, accessibility to print materials for U of MMusers, and precautions taken toto
users, and precautions taken
2.3.1 regarding insurance, accessibility to pdnt materials for U of
ensure protection of the materials shall also apply to materials digitized on-site in the Buhr storage faCility.
ensure protection of the materials shall also apply to materials digitized on-site in the Buhr storage facility.
2.4 Digitizing the Selected Content. Google will be responsible for Digitizing the Selected
2.4 Digitizing the Selected Content. Google will be responsible for Digitizing the Selected
Content. Subject to handling constraints or procedures specified in the Project Plan, Google shall alat its
Content. Subject to handling constraints or procedures specified in the Project Plan, Google shall its
sole discretion determine how best to Digitize the Selected Content, so long as the resulting digital files
sole discretion determine how best to Digitize the Salected Content, so long as the resulting digital files
meet benchmarkingguidelines agreed 10to by Google and U of M, and the U of M Digital Copy can be
meet benchmarking guidelines agreed by Google and U of M, and the U of M Digital Copy can be
provided to U of M in a format agreed 10 by Google and U U of M. U of M will engage in ongoing review
provided to U of M in a format agreed to by Google and of M. U of M will engage in ongoing review
(through sampling) of the resulting digital mes, and shall inform Google of of files that do not meet
(through sampling) of the resulting digital files, and shall inform Google files that do not meet
benchrnarking guidelines oror do not comply with the agreed-upon format. Shouldof M encounter a a
i:oenehmer/dng guidelines de not ccmpty with the agreed-upon formal. Should U U of M encounter
persistent failure by GoogJe to meet these guidelines or supply the agreed-upon format, U U of M may stop
persistent faDure by Google to meel these guidelines or supply the agreed-upon format, of M may stop
new work until this failure can be rectified. Any restrictions on GoogIe's discretion shali be specified onon a
new work until this failure can be rectified. Any restrictions on Google’s discretion shall be specified a
project-by-project basis via the corresponding Project Form(s) or by amendment to this Agreement.
project-by-project basis via the corresponding Project Ferm(s) or by amendment to this AgreemenL
2.5 U of M Digital Copy. Google agrees to provide to U of M a copy of ali Digitized Selected
2.5 U of M Digital Copy. Google agrees to provide to U of M a copy of all Digitized Selected
Content thai has been "Successfully Processed" within thirty (30) days after the Selecled Contenl is
Content that has been "Successfully Processed" within thirty (30) days after the Selected Content is
Digitized, or in a timeframe mutually agreed by the Parties. Digitized Selected Content is "Successfully
Digitized, or in a limeframe mulually agreed by the Parties. Digitized Selected Conlent is ·Successfully
Processed" when Gcogle determines it has satisfactorily gone through ali stages of Google's digitization,
Processed" when Google determines it has satisfactorily gone through all stages of Google’s digitization,
post processing and quality assurance procedures (not to exceed thirty days for material received by
post processing and quality assurance procedures (not to exceed thirty days for material received by
Google, unless otherwise agreed to by the parties). Within thirty (30) days after the Selected Content is
Google, unless otherwise agreed to by the parties). Within thirty (30) days after the Selected Content is
Digitized, or in a timeframe mutually agreed by the PaNties,Google shall provide the UU of M Digital Copy
Digitized, or in a timeframe mutually agreed by the Parties, Goagle shall provide the of M Digital Copy

•

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to the U of M. Unless otherwise agreed by the Parties writing, the U of M Digital Copy will consist of a
to the U of M. Unless otherwise agreed by the Parties in in writing, the U of M Digital Copy will consist of a

set of image and OCR files and associated information indicating a minimum (1) bibliographic
set of image and OCR files and associated information indicating at at a minimum (1) bibliographic
information consisting the liUe and author of each Digitized work, (2) which image files correspond to
information consisting ofof the title and author of each Digitized work, (2) which image files correspond to
that Digitized work, and (3) the logical order of those image files. Google shall provide the U of M Digital
that Digitized work, and (3) the logical order of those image files. Google shall provide the U of M Digital
Copy via network connection, or in any other manner mutually agreed upon by by Parties.
Copy via aa network connection, or in any other manner mutually agreed upon thethe Parties.

•

2.5.1 Google may delay transferring Digitized Selected Content U of M If if it decides not
2.5.1 Google may delay kansferring Digitized Selected Content to to U of M it decides not
to use that content due to dispute with a third-party. In this case, Google must inform U of M, in writing,
to use that content due to a a dispute with a third-party. In this case, Google must inform U of M, in writing,
of the details of the dispute and the specific content be delayed. Google may delay transfer of of this
of the details of the dispute and the specific content to to be delayed. Google may delay transfer this
content until such time as Google makes any use (including Indexing) that Digitized content (or the
content until such time as Google makes any use (including Indexing) of of that Digitized contenl (or the
same content acquired from another source, if that Digitized content in the public domain or out-ofsame content acquired from another source, if that Digitized conlent Is is in the public domain or out-ofpdnt) beyond storage a dark archive.
print) beyond storage inin a dark archive.
2.52 Within years of the lime Google has transferred Digitized Selected Content to U
2.52 Within 3 3 yearsof the time Google has transferred Digilized Selected Conlent to U of of
M, if Google decides not to use that content due a dispute with a third-party, U of M will destroy that
M, if Google decides not to use that content due toto a dispute with a third-party, U of M will destroy that
content (so long as it is in print and protected by copyright) from the U of M Digital Copy. In this case,
content (so long as it is in print and protected by copyright) from the U of M Digital Copy. In this case,
Google must inform U of M in writing of the details the dispute and the specific content to to destroyed.
Google must inform U of M in writing of the details ofof the dispute and the specific content be be destroyed.
If, at any time, Google subsequently makes any use (including indexing) that Digitized content (or the
If. at any time, Google subsequently makes any use (Including indexing) ofof that Digitized content (or the
same content acquired from another source, that Digitized content is in the public domain or out-ofsame content acquired from another source. if if that Digitized content is in the public domain or out-ofpdnt) beyond storage in dark archive, Google will retransfer that Digitized Content to to U of
print) beyond storage in aa dark amhive, Google will retransfer that Digitized Content U of M. M.
2.6 Returning the Selected Content. O"ce completed with the Digitizing process, Google will
2.6 Returning the Selected Content Opce completed with the Digitizing process, Google will

be responsible for returning the Selected Content the source from which GoogJe obtained it and in in
be responsible for returning the Selected Content to to the source from which Google obtained it andthe the
I~e manner in which it was collected, within three (3) weeks unless otherwise specified the Project
like manner in which it was collected, within three (3) weeks unless otherwise Specified inin the Project

Form or otherwise agreed upon by the parties. Google reasonabfy determines that it will require longer
Form or otherwise agreed upon by the parties. If If Google reasonably determines that it will require longer
to Digitize some or all of the Selected Content than the time frame set forth in the Project Form, the
to Digitize some or an of the Selected Content than the time frame set forth in the Project Form, the
Parties will discuss in good faith whether a time extension is feasible. If the Parties agree upon an
Parties will discuss in good faith whether a time extension is feasible. If the Parties agree upon an
extension, they shall record such agreement as an amendment the Project Form. If the Parties can not
extension, they shaD record such agreement as an amendment toto the Project Form. If the Parties can not
agree upon an extension, Google shall return the Selected Conlent within the time frames set forth in the
agree upon an extension, Google shall return the Selected Content within the time frames set forth in the
Project Form.
Project Fonn.
2.7 Responsibility for damage to the Selected Content. While certain Selected Content is is
2.7 Responsibility for damage 10 the Selected Content. While certain Selected Content
within Google’s possession, Google shall make commercially reasonable efforts toto minimize damage to
within Google's possession, Google shall make commercially reasonable efforts minimize damage to
the Selected Content, including handling the Selected Content in accordance with handling instructions
the Selected Content. including handling the Selected Content in accordance with handling instructions
set forth in the Project Fonn. if any. If Google, due to its negligence, damages certain Selected Content.
Form, if any. If Google. due to its negligence, damages certain Selected Content,
set forth in the Project
Google shall. at its own cost, have the damaged Selected Content restored toto the condition in which
GoogJe shall, at its own cost, have the damaged Selected Content restored the condition In which
Google received it. Restorationof all materials must be performed byby or under the management of
Google received it. Restoration of all materials must be performed or under the management of
U of M Conservation Services.
U of M Conservation Services.
3.
COSTS
3.
~

•

3.1 Costs borne by U of M. UU ofM shall bear the following costs: U of M employees (other
3.1 Costs borne by U of M. of M shall bear the following costs: U of M employees (other
than staff scanning operators and slaff employed to pull and return materials toto the shelves, including
than staff scanning operators and staff employed to pull and return materials the shelves, including
reshelving) whose participation is contemplated by this Agreement (Including all cost ofof U of M employees
resheMng) whose participation is contemplated by this Agreement (including all cost U of M employees
required to provide Selected Content to Google as well as project management costs incurred by UU of M),
required to provide Selected Content to Google as well as project management costs incurred by of M),
nelwork bandwidth and data storage required by U of M to receive some oror all of the U of M Digital Copy
and data storage required by U of M to receive some aU of the U of M Digital Copy
network bandwidth
or existing bandwidth available for use by Google to transfer Digitized files from U of M facilities toto
or existing bandwidth available for use by Google to transfer Digitized files from U of M facilities
Googl~’s da~ centers a~ UU orbt space that may be available to Google.
Googrs's data centers and oF M space thai may be available to Google.
3.2 Costs borne by Google. Google shall bear the following costs: Google employees or
3.2 Costs borne by Google. Google shall bear the following costs: Google employees or
agents whose participation is contemplated by this Agreement (Including all cost of Google employees
agents whose participation is contemplated by this Agreement (including all cost of Google employees
required between receipt/collection ofthe Selected Content from UU of M and return of the Selected
required between receipllcollection of the Selected Content from of M and return of the Selected
Content to U of M), hardware and software required to Digitize the Selected Content. space required to to
Content to U of M), hardware and software required to Digitize the Selected Content, space required
Digitize the Selected Content (to the extent not provided by U of M), transportation of Selected Content
by U of M), transportation of Selected Content
Digitize the Selected Content (to the extent not provided
from the U of M facility in which the Selected Content Is nonnally kept (if required), and resolving
is normally kept (if required), and resolving
from the U of M facility in which the Selected Content
copyright issues associated with Google’s use of the Google Digital Copy.
copyright issues associated with Google's use of the Google Digital Copy.
3.3 Budgets. Notwithstanding the foregoing, U of M and Google may jointly develop a a budget
3.3 Budgets. Notwithstanomg the foregoing, U of M and Google may jointly develop budget
for each Project Plan, pursuant to which the parties can allocate the cost of researching and identifying
the cost of researching and identifying
for each Project Plan. pursuant to which the parties can allocate
the Selected Content, conducting conservation assessments, perfonning conservation work, and
assessments, performing conservation work, and
the Selected Content, conducting conservation
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performing any required copyright reseamh and clearances. Any such budget shall take precedence over
perfonning any required copyright research and clearances. Any such budget shall take precedence over
the general obligations set forth above in sections 3.1 and 3.2.
the general obligations set forth above in sections 3.1 and 3.2.
4.
4.

OWNERSHIP AND USE OF DIGITAL COPIES AND SERVICES
OWNERSHIP AND USE OF DIGITAL COPIES AND SERVICES

4.1 Copyright Law. Both Google and U of M agree and intend to perform this Agreement
4.1 Copyright Law. Both Google and U of M agree and intend to perform this Agreement
pursuant to copyright law. at any time, either party becomes aware copyright infringement under this
pursuant to copyright law. IfIfat any time, either party becomes aware of of copyright infringement under this
agreement, that party shall inform the other as quickly as reasonably possible.
agreement, that party shall inform the other as quickly as reasonably possible.
4.2 Copyright Status. As Selected Content is provided by U of to Google for Digitizing,
4.2 Copyright Status. As Selected Content is provided by U of MM to Google for Digitizing,
U of M shall to the best of its knowledge notify Google which portions the Selected Content are in the
U of M shall to the best of Us knowledge notify Google which portions ofof the Selected Content are in the
public domain and which portions may be subject copyright. Notwithstanding the foregoing, Google
public domain and which portions may be subject toto copyright.Notwithstanding the foregoing, Google
shall be responsible for ensuring that Google’s digitization and use of the Google Digital Copy is
shall be responsible for enSuring that Google's digitlzation and Us its use of the Google Digital Copy is
authorized by the relevant copyright holders by law. If either party reasonably determines that
authorized by the relevant copyright holders or or by law. Ifeither party reasonably determines that a a
portion of the Selected Content that was previously thought be in the public domain is actually subject
portion of the Selected Content that was previously thought to to be in the public domain is actually subject
to copyright, that party shall promptly notify the other party in writing that particularly identifies the
to copyright, that party shaD promptly notify the other party in aawriting that particularly identifies the
portion(s) and provides an explanation for why the portion(s) are believed to subject to to copyright.
portion(s) and provides an explanation for why the portion(s) are believed to be be subject copyright.
4.3 Searching Free to the Public: Google agrees that to the extent that it or its successors
4.3 Searching Free to the Public: Google agrees that to the extent that it or its successors
make Digitized Available Content searchable the Internet, it it shall provide interface for both
make DigHized Available Content searchable via via the lntemet,shall provide an an interface for both
searching and display of search results that shall have no direct cost end users. Violations of this
searching and aadisplay of search results that shall have no direct cost to to end users. Violations of this
subsection, 4.3, not cured within thirty days of notification by of M shall terminate U of M's obligations
subsection, 4.3, not cured within thirty days of notification by UU of M shall terminate U of M’s obligations
under section 4.4.
under section 4.4.
4.4 Ownership and use of U of M Digital Copy. Neither U of M nor Google shall have any
4.4 Ownership and use of U of M Digital Copy. Neither U of M nor Google shall have any
ownership or license rights to the Available Content that DigHized (i.e., to the materials underlying the
ownership or license rights to the Available Content that isis Digitized (i.e., to the materials underlying the
digitization process), except where UM already has such rights. As between Google and U of MM and
digHization process), except where UM already has such dghts. As between Google and U of and
subject to the provisions in this section 4, U of M shall own all rights, title, and interest to the U of M Digital
subject to the provisions in this section 4, U of M shall own all dghts, title, and interest to the U of M Digital
Copy.
Copy.

•

4.4.1 Use of U of M Digital Copy on U of M Website. U of M shall have the right use
4.4.1 Use of U of M Digital Copy on U of M Website. U of M shall have the right to to use
the U of M Digital Copy, in whole or in part at U of M’s sole discretion, as part of services offered on
the U of M Digital Copy, in whole or in part at U of M's sole discretion, as part of services offered on
U of M’s website. U of M shall implement technological measures (e.g., through use of the robots.txt
U of M's website. U of M shall implement technological measures (e.g., through use of the robots.txt
protocol) to reskict automated access to any portion of the U of M Digital Copy or the portions of the
protocol) to restrict automated access to any portion of the U of M Digital Copy or the portions of the
U of M website on which any portion ofof the U of M Digital Copy is available. U of M shall also make
U of M website on which any portion the U of M Digital Copy is available. U of M shall also make
reasonable efforts (including but not limited restrictions placed in Terms of Use for the U U M M website)
reasonable efforts (including but not limited toto restrictions placed in Terms of Use for the of of website)
to prevent third parties from (a) downloading oror otherwise obtaining any podion thetheof M Digital Copy
to prevent third padies from (a) downloading otherwise obtaining any portion of of U U of M Digital Copy
for commercial purposes, (b) redistributing any portions of the UU of M Digital Copy, or (c) automated and
for commercial purposes, (b) redistributing any portions of the of M Digital Copy, or (c) automated and
systematic downloading from its website image files from the U U of M Digital Copy. U of M shall restrict
systematic downloading from its website image files from the of M Digital Copy. U of M shall restrict
access to the U of M Digital Copy to those persons having aaneed to access such materials and shall also
access to the U of M Digital Copy to those persons having need to access such materials and shall also
cooperate in good faith with Google to mutually develop methods and systems forfor ensuring that the
cooperate in good faith with Google to mutually develop methods and systems ensuring that the
substantial portions of the U of M Digital Copy are not downloaded from the services offered on onof M'sM’s
substantial portions of the U of M Digital Copy are not downloaded from the services offered U U of
website or otherwise disseminated to the public at large.
website or otherwise disseminated to the public at large.
4.4.2 Use of UUof M Digital Copy in CooperativeWeb Services, Subject toto the
4.42 Use of of M Digital Copy in Cooperative Web Services. Subject the
restrictions set forth in this section, U of M shall have the right to use the UU of M Digital Copy, in whole or
restrictions set forth in this section, U of M shall have the right to use the of M Digital Copy, in whole or
in pad at U of M's sole discretion, as part of services offered in cooperation with partner research libraries
in part at U of M’s sole discretion, as part of se~ices offered in cooperation with partner research libraries
such as the institutions in the Digital Library Federation. Before making any such distribution, U of M
such as the institutions in the Digital Library. Federation. Before making any such distribution, U of M
shall enter into a written agreement with the partner research library and shall provide a a copy of such
shall enter into a written agreement with the partner research library and shall provide copy of such
agreement to Google, which agreement shall: (a) contain limilations onon the partner research libra,s use
agreement to Google, which agreement shall: (a) contain limitations the partner research library's use
of the materials that correspond to and are at least as restrictive as the limitations placed on UU of M’s use
of the materials that correspond to and are at least as restrictive as the limitations placed on of M's use
of the UofM Digital Copy in section 4.4.1; and (b) shall expressly name Google as aathird party
of the U of M Digital Copy in section 4.4.1; and (b) shall expressly name Google as third party
beneficiary of that agreement, including the ability for Google to enforce the restrictions against the
benefICiary of that agreement, including the ability for Google to enforce the restrictions against the
partner research library.
partner research library.
4.5 Ownership and use of Google Digital Copy. Neither UUof M nor Google shan have any
4.5 Ownership and use of Google Digital Copy. Neither of M nor Google shall have any
ownership or license rights to the Available Content that is digitized (i.e., to the materials underlying the
ownership or license rights to the Available Content that is digitized (i.e., to the materials underlying the
digitization process), except where UM already owns such rights. As between Google and UU of M and
digHization process), except where UM already owns such rights. As between Google and of M and
subject to the provisions in this section 4, Google shall own all rights, title. and interest to the Google
subject to the provisions in this section 4, Google shall own all dghts, title, and interest to the Google
Digital Copy.
Digital Copy.

•

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4.5.1 Google use of Google Digital Copy. Subject to the restrictions set forth this
4.5.1 Google use of Google Digital Copy. Subject to the restrictionsset forth inJn this
section, Google may use the Google Digital Copy, in whole or in part at Google’s sole discretion, as pad
section, Google may use the Google Digital Copy, in whole or in part at Google's sole discretion, as part
of the Services. For portions of the Google Digital Copy that correspond works mutually identified as
of the Services. For portions of the Google Digital Copy that correspond to to works mutually identified as
being the public domain for which Google has obtained permission from the relevant copyright
being ininthe public domain oror for which Google has obtained permission from the relevant copyright
owner(s), Google may among other things index the text and serve and display full-sized digital
owner(s), Google may among other things index the fullfull text and serve and display full-sized digital
images corresponding those portions. For all other poRtions the Google Digital Copy, Google may
images corresponding toto those po~ons.For all other portions of of the Google Digital Copy, Google may
index the full text but may not serve or display the full-sized digital image unless Google has appropriate
index the full text but may not serve or display the full-sized digital image unless Google has appropriate
legal authority to do so; Google instead may serve and display (1) an excerpt that Google reasonably
legal authority to do so; GoogJe instead may serve and display (1) an excerpt that Google reasonably
determines would constitute fair use under copyright law and (2) bibliographic (e.g., title, author, date, etc)
determines would constitute fair use under copyright law and (2) bibliographic (e.g., title, author, date, etc)
and other non-copyrighted information. U of M discovers that digital images being served and
and other non-copyrighted information. If If U of M discovers that digital images being served and
displayed full-size by Google are subject copyright restrictions, U of M shall notify Google in in writing and
displayed full-size by Google are subject toto copyright resffictions, U of M shall notify Google writing and
Googie shall cease serving and displaying such images full-size. Furthermore, address situations
Gcogle shall cease serving and displaying such images full-size. Furthermore, toto address situations
where Google believed had the right to serve full-sized digital images but was incorrect in in such belief,
where Google believed it it had the right to serve full-sized digital images but was incorrectsuch belief,
Google shall implement processes (e.g., notice and takedown) that facilitate the ability of copyright
Google shall implement processes (e.g., notice and takedown) that facilitate the ability of copyright
owners to request removal of such digital images from the index.
owners to request removal of such digital images from the index.

•

4.5.2 Security and Privacy Regarding Google’s Use the Google Digital Copy.
4.5.2 ,Security and Privacy Regarding Google's Use of of the Google Digital Copy.
Google shall implement technological measures (e.g., through use the robots.txt protocol) to restrict
Google shaD implement technological measures (e.g., through use ofof the robots.txt protocol) to resffict
automated access to any portion of the Google Digital Copy the portions of the Google website on
automated access to any portion of the Google Digital Copy oror the portions of the Google website on
which any portion of the Google Digital Copy available. In addition, Google shall maintain its
which any portion of the Gcogle Digital Copy is is available.In addition, Google shall maintain on on its
website a privacy policy that governs collection and use information that Google obtains from a a user
website a privacy policy that governs collection and use ofof information that Google obtains fromuser of of
the Google Search Services.
the Google Search Services.
4.5.3 Distribution of Google Digital Copy. To the extent portions of the Google Digital
4.5.3 Distribution of Google Digital Copy. To the extent portions of the Google Digital
Copy are either in the public domain or where Google has otherwise obtained authorization, Google shall
Copy are either in the public domain or where Google has otherwise obtained authorization, Google shall
have the dght, in its sole discretion, to make copies of such portions of the Google Digital Copy and
have the right, in its sole discretion, to make copies of such portions of the Google Digital Copy and toto
provide, license, or sell such copies to any party, subject to such copies being used consistent with the
provide, license, or sell such copies to any party, subject to such copies being used consistent with the
copyright-related restrictions set forth in section 4.5.1.
copyright-related restrictions set forth in section 4.5.1.
4.6 Ownership and Control of Services. As between the parties, the Services and allall content
4.6 OWnership and Control of Services. As between the parties, the Services and content
therein is, and at all times will remain, the exclusive property of Google or ~.spartners; nothing in this
therein is, and at all times will remain, the exclusive property of Google or its partners; nothing in this
Agreement implies any transfer to U of M of any ownership interest inin the Services. U of M acknowledges
Agreement implies any transfer to U of M of any ownership interest the Services. U of M acknowledges
and agrees that Google retains control of the Services, and that the design, layout, content, functions and
and agrees that Google retains control of the Services, and that the design, layout, content, functions and
features of the Services are at Google’s discretion. Notwithstanding anything to to the contrary in this
features of the Services are at Google's discretion. Notwithstanding anything the contrary in this
Agreement, Google is not required to make any or all of the Google Digital Copy available through the
Agreement, Google is not required to make any or all of the Google Digital Copy available through the
Services.
Services.

•

4.7 No other rights. Except as set forth above, nothing in this subsection shall be interpreted as
4.7 No other rights. Except as set forth above, nothing in this subsection shall be interpreted as
a grant of dght from either party to the other party.
a grant of right from either party to the other parly.
5.
ACCESS, AUTHORIZATION,AND SUPPORT
5.
ACCESS. AUTHORIZATION. AND SUPPORT
5.1 Access. On a a project-specificbasis, Google shall have the right to access Selected Content
5.1 Access. On project-specific basis, Google shall have the right to access Selected Content
during U of M business/staffhours (8:00am to 5:00pm, Monday through Friday) without first being
during U of M business/staff hours (8:00am to 5;00pm, Monday through Friday) without first being
required to notify U of M. On a project-specific basis, U of M may make reasonable efforts toto provide
required to notify U of M. On a project-specifIC basis, U of M may make reasonable efforts provide
Google with access to Selected Content outside of U of M business hours provided that Google notify
Google with access to Selected Content outside of U of M business hours provided that Google notify
U of M at least three days in advance of its desire to access such materials.
U of M at least three days in advance of its desire to access such materials.
,5.2 Authorization. The U of M program manager responsible for the Selected Content Involved
5.2 Authorization. The U of M program manager responsible for the Selected Content involved
in any Project Plan shall have authority to agree with Goog/e on the time frames and procedures (e.g.,
in any Project Plan shall have authority to agree with Google on the time frames and procedures (e.g.,
collection, conservation, handling) associated with that Selected Content. IfIf Google in good faith believes
collection, conservation, handling) associated with that Selected Content. Gcogle in good faith believes
that the time frames and procedures requested by the U of M program manager are unreasonable,
that the time frames and procedures requested by the U of M program manager are unreasonable,
Google shall escalate the matter to the U of M administrative contact; in which case Google, the U of M
contact; in which case Google, the U of M
Google shaD escalate the matter to the U of M administrative
program manager, and the administrative contact shall meet to resolve the issue.
contact shall meet to resolve the issue.
program manager, and the administrative
5.3 Support. U U of M shall appointone person to serve as the administrativecontact for Google,
of M shall appoint one person to serve as the administrative contact for Google,
5.3 Support.
should administrative questions or issues arise during the course of this Agreement. This administrative
or issues arise during the course of this Agreement. This administrative
should administrative questions
contact shall be available during business hours at a telephone number and e-mail address to be
hours at a telephone number and e-mail address to be
contact shall be available during business
provided by U of M. U of M shall also appoint one person to serve as the technical contact for GoogIe, for
person to serve as the technical contact for Google, for
provided by U of M. U of M shall also appoint one
obtaining or regulating the use of the U of M Digital Copy. This technical contact shall be available during
obtaining or regulating the use of the U of M Digital Copy. This technical contact shall be available during
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regular U of M business hours (8:30 4:30, Monday through Friday) at a a telephone number and e-mail
regular U of M business hours (8:30 toto 4:30, Monday through Friday) at telephone number and e-mail
address to be provided by of M. Upon execution of this contract, both Google and of M shall identify
address to be provided by UU of M.Upon execution of this contract, both Google and U U of M shall identify
these individuals in writing, and the resulting document shall serve as an addendum this contract.
these indMduals in writing, and the resulting document shall serve as an addendum to to this contract.
6.
6.

CONFIDENTIALITY
CONFIDENTIALITY

6.1 Confidential Information. By virtue of this Agreement, each Party may have access
6.1 Confidential Information. By virtue of this Agreement, each Party may have access to to
information of the other Party which considered confidential and proprietary, including the terms of of
information of the other Party which isis considered confidential and proprietary, including the termsthisthis
Agreement, Project Plan or Project Form, product plans, customer lists, and proprietary technology
Agreement, Project Plan or Project Form, product plans, customer lists, and proprietary technology or or
methods ("Confidential Information"), whether disclosed in tangible or intangible form. Information
methods rConfldential Informatlon-), whether disclosed in tangible or intangible form. Information
disclosed in tangible form will be considered Confidential Information if it is marked ·Confidential" or or
disclosed in tangible form will be considered Confidential Information if it is marked asas "Confidential" a a
similar designation. Information disclosed intangible form will be considered Confidential Information if
similar designation. Information disclosed inin intangible form will be considered Confidential Information if
the disclosing party clearly indicates that it is confidential at the time of disclosure.
the disclOSing party clearly indicates that it is confidential at the time of disclosure.
6.2 Obligations. Each Party shall exercise at least the same degree care to avoid the
6.2 Obligations. Each Party shall exercise at least the sarne degree ofof care to avoid the
publication or dissemination the Confidential Information of of other Party as as it affords to own
publication or dissemination ofof the Confidential Information the the other Party it affords to Its its own
confidential informafion a simOar nature whiCh it it desires not be published or disseminated. The
confidential information ofof a simgar nature which desires not to to be published or disseminated. The
receiving Party shall not use Confidential Information the disclosing Party except in in furtherance of
receMng Party shall not use Confidential Information of of the disclosing Party except thethe furtherance of
this Agreement or the performance of its obligations hereunder. The obligation of Parties not to
this Agreement or the performance of its obligations hereunder. The obligation of the the Parties not to
disclose Confidential Information survives expiration, termination cancellation of of this Agreement.
disclose Confidential Information survives expiration, termination or or cancellation this Agreement.

•

6.3 Exceptions. Neither Party is obligated to protect Confidential Information the other Party
6.3 Exceptions. Neither Party is obligated to protect Confidential Information ofof the other Party
that: (i) is rightfully received by the receiving Party from another party without restriction, or (ii) known to
that: (I) is rightfully received by the receiving Party from another party without restriction, or (ii) isis known to
or developed by the receiving Party independently without use or reference to, the Confidential
or developedby the receiving Party independently without use of, of, or reference to, the Confidential
Information, or (iii) is or becomes generally known the public by other than a a breach of duty hereunder
Information, or (iii) is or becomes generally known toto the public by other than breach of duty hereunder
by the receiving Party, (iv) has been or is hereafter fumished others by the disclosing Party without
by the receiving Party, (Iv) has been or is hereafter fumished toto others by the disclosing Party without
restriction on disclosure, or (v) required to be disclosed by any governmental authority. Google
restriction on disclosure, or (v) required to be disclosed by any governmental authority. Google
understands that U of M, as a public institution, is subject to the Michigan Freedom of Information Act,
understands that U of M, as a public institution, is subject to the Michigan Freedom of Information Act,
and any disclosure of Confidential Information required by that statute will not constitute a a breach of this
and any disclosure of Confidential Information raquired by that statute will not constitute breach of this
agreemenL
agreement.
7.
7.

MARKETING
MARKETING

7.1 Press Releases or Announcements. Other than as has been mutually agreed upon by the
7.1 Press Releases or Announcements. Other than as has been mutually agreed upon by the
Parties, neither Party may make any press announcements about the relationship or this Agreement
Parties, neither Party may make any press announcements about the relationship or this Agreement
without the prior written approval of the other Party, which wDI not be unreasonably withheld or or delayed.
without the prior written approval of the other Party, which will not be unreasonably withheld delayed.
U of M and Google, as practicable, will coordinate regarding the timing of any press release(s) and wHi
U of M and Google, as practicable, will coordinate regarding the timing of any press release(s) and w~l
mutually agree upon appropriate talking points.
mutually agree upon appropriate talking points.
72 License to Marks. Each party will submit all materials of any kind containingthe other
7.2 license to Marks. Each party will submit all materials of any kind containing the other
party’s Brand Features (other than its name in customer lists) toto the other party for approval prior to
party's Brand Features (other than its name in customer lists) the other party for approval prior to
release to the public. Except as set forth in this section, nothing in this Agreement shaD be deemed to
release to the public. Except as set forth in this section. nothing in this Agreement shall be deemed to
grant to one party any right, title or Interest in or to the other party's Brand Features. All use by Google ofof
grant to one party any fight, title or interest in or to the other party’s Brand Features. All use by Google
U of M's Brand Features (including any goodwill associated therewith) shall inure to to the benefit of of M M
U of M’s Brand Features (including any goodwill associated therewith) shall inure the benefit of U U of
and all use by U of M of Google’s Brand Features (including any goodwill associated therewith) shall
and all use by U of M of Google's Brand Features (including any goodwill associated therewith) shall
inure to the benef’dof Google. At no time during the Term shall one party chaDenge oror assist others to
inure to the benefit of Google. At no time during the Term shall one party challenge assist others to
challenge the Brand Features of the other party (except toto the extent required to protect its own Brand
challenge the Brand Features of the other party (except the extent required to protect its own Brand
Features) or the registration thereof by the other party, nor shall either party attempt toto register any Brand
Features) or the registration thereof by the other p~rt~, nor shal! either party attempt register any Brand
Features or domain names that are confusingly similar to those of the other party
Features or domain names that are confusingly similar to those of the other party
8.
TERM AND TERMINATION
8.
TERM AND TERMINATION
8.1 Term This Agreementis effective as of the Effective Date and continues in in full fome and
8.1 Term This Agreement is effective as of the Effective Date and continues full force and
effect until April 30, 2009, unless earlier terminated as provided herein atat the end of thePoot Project.
effect until Apnl 30, 2009, unless eadier terminated as provided herein the end of the Pilot Project.
Upon the expiration of the Initial Term. this Agreement shall automatically renew for additional one year
Upon the expiration of the Initial Term, this Agreement shall automatically renew for additional one year
terms (each a "Renewal Term~) unless either Party notifies thethe other Party thethe contraryleast thirty
terms (each a -Renewal Term") unless either Party notifies other Party to to contrary at at least thirty
(30) days before the end of either the Pilot Project, the Initial Term oror a Renewal Term. The ~’l’errn" thisthis
(30) days before the end of either the Pilot Project, the Initial Term a Renewal Term. The "Term" of of
Agreement shall comprise the Initial Term and any Renewal Terms.
Agreement shall comprise the Initial Term and any Renewal Terms.
8.2 Effect of Expiration or Termination. Within thirty (30) days after expiration or termination of
8.2 Effect of Expiration or Termination. Within thirty (30) days after expiration or termination of
this Agreement
reason, each Party shall return to the other Party (or, at that Party’s request,
this Agreement for any reason, each Party shall retum to the other Party (or, at that Party's request.

•

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destroy) any Confidential Information that Party that is is in its possession. The following sections survive
destroy) any Confidential Information of of that Party that in its possession. The fol/owing sections survive
expiration termination of this Agreement: 1, 2.51, 2.52, 2.6, 2.7, 4.4 (so long as Google or a
expiration oror termination of this Agreement: 1, 2.51, 2.5~2, 2.6, 2.7, 4.4 (so long as Google or a
successor continues to exist), 4.5, 4.7, 4.8, 6, 82., and 9-12.
successor continues to exist), 4.5, 4.7, 4.8, 6, 82, and 9-12.
9.
9.

WARRANTIES AND DISCLAIMFR
WARRANTIES AND DISCLAIMER

•

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

INDEMNIFICATION.
INDEMNIFICATION.

10.1
Google. Google shall defend and indemnify the U otM, its Regents, employees, and
10.1 ByBy Google. Google shall defend and indemnifythe U of M, its Regents, employees, and
agents against any third party claim based on an allegation that the of M's (or its Regents', employees',
agents against any third party claim based on an allegation that the UU of M’s (or its Regents’, employees’,
or agents’) or Google’s actions, pursuant to this Agreement, violate that third party’s copyrights other
or agents') or GoogJe's actions, pursuant to this Agreement, violate that third party's copyrights or or other
legal dghts. The foregoing indemnification includes of M's receipt of the U of M Digital Copy, but
legal rights. The foregoing indemnification includes U U of M’s receipt of the U of M Digital Copy, but
excludes any third party claim that relates to U of M’s use or distribution of the of M Digital Copy or that
excludes any third party claim that relates to U of M's use or distnbution of the UU of M Digital Copy or that
arises from U of M's (or its Regents', employees' and agents') negligence under thisthis Agreement. Google
arises from U of M’s (or its Regents’, employees’ and agents’) negligence under Agreement. Goog,e
shall select counsel reasonably appropriate for such defense and shall pay for all costs incurred such
shall select counsel reasonably appropriate for such defense and shall pay for all costs incurred byby such
counsel. In addition, Google shall pay any damage awards or settlement costs that may be incurred.
counsel. In addition, Google shall pay any damage awards or settlement costs thaI may be incurred.
U of M may participate in the defense with counsel of its own choice, at its own expense.
U of M may participate in the defense with counsel of its own choice, at its own expense.
10.2
U U M. U U M shall defend and indemnify Google, its employees and agents against
10.2 ByBy of of M. of of M shall defend and indemnify Google, its employees and agents against
any third party claim based on an allegation that U of M's use or distribution ofof the U of M Digital Copy
any third party claim based on an allegation that U of M’s use or distribution the U of M Digital Copy
violates third party copyrights or other legal rights. U of M shall also defend and indemnify Google, itsits
violates third pady copyrights or other legal rights. U of M shall also defend and indemnify Google,
employees and agents against any third party claim based on an allegation that any third party's use oror
employees and agents against any third party claim based on an allegation that any third party’s use
distribution of the U of M Digital Copy violates third party copyrights oror other legal rights. U of M shall
distribution of the U of M Digital Copy violates third party copyrights other legal rights. U of M shall
select counsel reasonably appropriate for such defense and shall pay for allall costs incurred by such
select counsel reasonably appropriate for such defense and shall pay for costs incurred by such
counsel. In addition, U of M shall pay any damage awards or settlement costs that may be Incurred.
counsel. In addition, U of M shall pay any damage awards or settlement costs that may be incurred.
Google may participate in the defense with counsel of its own choice, at its own expense.
Google may participate in the defense with counsel of its own choice, at its own expense.

•

10.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, EACH
10.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, EACH
PARTY EXPRESSLYDISCLAIMS ANY FURTHER OBLIGATION TO INDEMNIFY, DEFEND OROR HOLD
PARTY EXPRESSLY DISCLAIMS ANy FURTHER OBLIGATION TO INDEMNIFY, DEFEND HOLD
HARMLESS THE OTHER PARTY FROM ANY THIRD PARTY CLAIM OR ACTION. THE FOREGOING
HARMLESS THE OTHER PARTY FROM ANY THIRD PARTY CLAIM OR ACTION. THE FOREGOING
PROVISIONSOF THIS SECTION 10 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF OF
PROVISIONS OF THIS SECTION 10 STATE THE ENTIRE LIABILITY AND OBLIGATIONS
INDEMNIFYING PARTY, AND THE EXCLUSIVE REMEDY OF INDEMNIFIED PARTY, WITH RESPECT
INDEMNIFYING PARTY, AND THE EXCLUSIVE REMEDY OF INDEMNIFIED PARTY, WITH RESPECT
TO ANY ACTUAL OR ALLEGED INFRINGEMENTOF ANY INTEllECTUAL PROPERTY RIGHTS
TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS
UNDER THIS AGREEMENT.
UNDER THIS AGREEMENT.
11.
.LIMITATION OF LIABILITY
11.
LIMITATION OF LIABILITY
EXCEPT FOR DAMAGES ARISING FROM BREACH OF SECTION 6 6(CONFIDENTIALITY) OROR
EXCEPT FOR DAMAGES ARISING FROM BREACH OF SECTION (CONFIDENTIALITY)
DAMAGES ARISING FROM BREACH OF SECTIONS 4.4 --4.6 (AND ASSOCIATED SUBSECTIONS),
DAMAGES ARISING FROM BREACH OF SECTIONS 4.4 4.6 (AND ASSOCIATED SUBSECTIONS),
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR ANY FORM
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR ANY FORM
OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIALDAMAGES OF ANY CHARACTER
OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER
FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT. WHETHER
FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT, WHETHER
BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND
BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND
WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE. EXCEPT FOR DAMAGES ARISING FROM BREACH OF SECTION 6 6 (CONFIDENTIALITY)
DAMAGE. EXCEPT FOR DAMAGES ARISING FROM BREACH OF SECTION (CONFIDENTIALITY)

CONFIDENTIAL
CONFIDENTIAL

8

GOOG05000362
GOOG05~0~2

•

A-237
Case 1:05-cv-08136-DC Document 1035-1

•

Filed 07/27/12 Page 10 of 13

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

GENERAL PROVISIONS
GENERAL PROVISIONS

12.1 No Obligation. Notwithstanding the foregoing. Google shall have obligation to
12.1 No Obligation. Notwithstanding the foregoing,Google shall have nono obligation to
Digitize any portion of the Available Content nor use any portion of the Google Digital Copy as as part
Digitize any portion of the Available Content nor to to use any portion of the Google Digital Copy part of of
the Services. U of M shall not be obligated to participate in any Project Plan to the extent of M does nol
the Services. U of M shall not be obligated to participate in any Project Plan to the extent UU of M does not
have sufficient funds to perform its budgeted obligations under that Project Plan. Furthermore,
have sufficient funds to perform its budgeted obligations under Ihat Project Plan. Furthermore.
notwithstanding anything this Agreement to the contrary. in the event Google determines. at at sole
notwithstanding anything inin this Agreement to the contrary, in the event Google determines, its its sole
discretion, not to Digitize some or all Selected Content connection with one or more specific Projects.
discretion. not to Digitize some or all Selected Content inin connection with one or more specific Projects,
whether due to cost issues, conservation concerns or otherwise, Google shall have obligation to the U
whether due to cost issues. conservation concerns or otherwise. Google shall have nono obligation to the U
of M with respect to digitizing or delivering the of M Digital Copy with respect to such Selected Content.
of M with respect to digitizing or delivering the UU of M Digital Copy with respect to such Selected Content.
12.2 Assignment. Neither Party may assign this Agreement without the other Party’s prior
12.2 Assignment. Neither Party may assign this Agreement without the other Party's prior
written consent, which consent shall not be unreasonably withheld. Any attempt to assign this Agreement
written consent, which consent shall not be unreasonably withheld. Any attempt to assign this Agreement
other than as permitted above will be null and void. Subject the foregoing. this Agreement is is binding
other than as permitted above wiD be nun and void. Subject toto the foregoing, this Agreement binding
upon and shall inure to the benefit of each of the Parties, and the successors and permitted assigns
upon and shall Inure to the benefit of each of the Parties. and the successors and permitted assigns of of
each.
each.

•

12.3 Notices. Any notice required permitted by this Agreement will be deemed given sent
12.3 Notices. Any notice required oror permittedby this Agreement will be deemed given if if sent
by facsimile or by registered mag, postage prepaid, addressed the other Party at the address set forth
by facsimile or by registered man. postage prepaid. addressed toto the other Party at the address set forth
at the top of this AgreemenL Delivery will be deemed effective upon transmission facsimile (with
at the top of this Agreemenl Delivery will be deemed effective upon transmission byby facsimile (with
receipt acknowledgement) three (3) days after deposit with postal authorities. Unless otherwise
receipt acknowledgement) oror three (3) days after deposit with postal authorities. Unless otherwise
specified by Google. notices directed to Google shall be sent to Google Inc.• Attn: General Counsel. 2400
specified by Google, notices directed to Google shall be sent to Google Inc., Attn: General Counsel, 2400
Bayshore Pkwy, Mountain View, CA 94043, or via facsimile to Google Inc., Attn: General Counsel, 650Bayshore Pkwy. Mountain View. CA 94043. or via facsimile to Google Inc.• Attn: General Counsel. 650618-1499. Unless otherwise specified by U of M. notices directed 10 UU of M shall be sent to University
618-1499. Unless otherwise specified by U of M, notices directed to of M shall be senl to University
Library, Attn: Associate University Librarian LIT. University of Michigan, Ann Arbor, MI48109-1205.
library. Attn: Associate University Librarian LIT, University of Michigan, Ann Arbor, M148109-1205.
12.4 Independent Contractors. The Parties to Ihis Agreement are independent Parties and
12.4 Independent Contractors. The Parties to this Agreement are independent Parties and
nothing herein shall be construed as creating an employment. agency, joint venture oror partnership
nothing herein shall be construed as creating an employment, agency, joint venture partnership
relationship between the Parties. Neither Party shall have any right, power or authority toto enter into any
relationship between the Pa~os. Neither Party shall have any right, power or authority enter into any
agreement for or on behaff of, or incur any obligation or liability, or to otherwise bind, the other Party.
agreement for or on behalf of. or incur any obligation or liability. or to otherwise bind, the other Party.
12.5 Severability. If any term provision of this Agreement is held to be invalid, illegal,
12.5 Severability. If any term oror provisionof this Agreementis held 10 be invalid. illegal. or or
otherwise void against public policy, such term or provision shall be stricken and shall not affect the
otherwise void against public policy, such term or provision shall be stricken and shall not affect the
validity or enforceability of the remaining terms and provisions ofof this Agreement.
validity or enforceability of the remaining terms and provisions this Agreement.
12.6 Force Majeure. Performance by either party under this Agreement shall be excused
12.6
Force Majeure. Performance by either party under this Agreement shall be excused
during the period such performance isisprevented oror delayed by government restrictions, warwar/ike
during the period such performance prevented delayed by government restrictions, war or or wad~e
activity (e.g., acts of terrorism). insurrection or civil disorder. labor disputes. or any other causes similarly
acllvity (e.g .• acts of terrorism), insurrection or civil disorder, labor disputes, or any other causes similarly
or dissimilar to the foregoing that are beyond the control ofof either party and are not foreseeable thethe
or dissimilar to the foregoing that are beyond the control either party and are not foreseeable at at
time the Agreement (or relevant amendment) is executed.
time the Agreement (or relevant amendment) is executed.
12.7 General. The Agreement shall be governed by Federal law without giving effect to to
12.7
General. The Agreement shall be governed by Federal law without giving effect
applicable conflict of laws provisions. In the event of any dispute or litigation arising out of of or relating to
applicable conflict of laws provisions. In the event of any dispute or litigation arising out or relating to
this Agreement, each Party agrees that ititshall attempt to resolve such dispute in in good faith. If such
this Agreement. each Party agrees that shall attempt to resolve such dispute good faith. If such
dispute cannot be ~esolvedwithin thirty days 01 being raised, the dispute shall be elevated to to the highest
dispute cannot be resolved within thirbj days oi" being raised, the dispute shall be elevated the highest
level at each Party. If the dispute still cannot be resolved within an additional thirty days. the aggrieved
level at each Party. If the dispute still cannot be resolved within an additional thirty days, the aggrieved
party may file a lawsuit in the state or federal courts with jurisdiction 10 hear such suits in the State of
party may me a lawsuit in the slate or federal courts with jurisdiction Io hear such suits in the State of
Michigan. This Agreement, including any Project Forms and attached Exhibits, constitutes the entire
Michigan. This Agreement. including any Project Forms and attached Exhibits, constitutes the entire
understanding and agreement with respect to its subject matter. and supersedes any and aI/all prior or
understanding and agreement with respect to its subject matter, and supersedes any and prior or
cuntemporaneeus representations. understandings and agreements whether oral or or written between the
contemporaneous representations, understandings and agreements whether oral written between the
Parties relating to the subject matter of this Agreement, all of which are merged in this Agreement. For
Parties relating to the subject matter of this Agreement, all of which are merged in lhis Agreement. For
avoidance of doubt, as of the Effective Date, this Agreementsupersedes and replaces any other
avoidance of doubt, as of the Effective Date. this Agreement supersedes and replaces any other
Cooperative Agreements between the parties to the extent they exist. No modification ofof or amendment
Cooperative Agreements between the parties to the extent they exist. No modification or amendment
to this Agreement’ nor any waiver of any rights under this Agreement. will be effective unless in in writing
to this Agreement. nor any waiver of any rights under this Agreement, will be effective unless writing
signed by the Party to be charged. and the waiver of any breach oror default will not constitutewaiver of of
signed by the Party to be charged, and the waiver of any breach default will not constitute a a waiver
any other right hereunder or any subsequent breach or default. All amendments or modifications ofof this
any other right hereunder or any subsequent breach or default. All amendments or modifications this

•

CONFIDENTIAL
CONFIDENTIAL

9

GOOG05000363
GOOG05000363

A-238
Case 1:05-cv-08136-DC Document 1035-1

Filed 07/27/12 Page 11 of 13

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

•

•

CONFIDENTIAl
CONFIDENTIAL

|0
10

GOOG05000364

•

A-239
Case 1:05-cv-08136-DC Document 1035-1

•

Filed 07/27/12 Page 12 of 13

Accepted and Agreed:
Accepted and Agreed:
Google Inc.

-:J)vd13

On behalf of the Regents of the University of
On behalf of the Regents of the University of
Michigan
Michigan

~/(t(()5 By:~~6t-J/or

(Authorized signature)
(Authorized signature)

(Authorized signature)
(Authorized signature)

Name: David Drummond
Name: David Drummond

Name: Timothy Slottow
Timothy Siottow

Title:..V.P., Corporate Development
Title: V.P .• Corporate Development

Title: Executive Vice President and
Title: Executive Vice President and
Chief Financial Officer
Chief Financial Officer

•

•

CONFIDENTIAL
CONFIDENTIAl

]!
11

GOOG05000365
GOOG05000365

A-240
Case 1:05-cv-08136-DC Document 1035-1

Filed 07/27/12 Page 13 of 13

•

EXHIBrr A
EXHIBIT A

SAMPLE PROJECT FORM
SAMPLE PROJECT FORM

Project Name:
Project Name:
Program Manager:
Program Manager:
Date:
Estimated Start Date:
Estimated Completion Date:
Estimated Completion Date:
Description of Works Involved:
Description of Works Involved:
Out-of-circulation Time:
Out-of-circulation Time:
Location Works:
location of Works:
Conservation Requirements:
Conservation Requirements:
Collection Instructions:
Collection Instructions:
Transpodation Instructions:
Transportation Instructions:
Special Handling Instructions:
Instructions:
Infrastructure Requirements (e.g., space, power, scanner size and quantity, environmental parameters,
Infrastructure Requirements (e.g., space, power, scanner size and quantity, environmental parameters,

•

etc.):

Hours of Operation:
Hours of Operation:
Known Copyright Restrictions;
Known Copyright Restrictions:
Budget Allocations (if any):
Budget Allocations (if any);
Other comments:
Other

CONFIDENTIAL
CONFIDENTiAl

]12
2

GOOGOSO00366
GOOG05000366

•

A-241
Case 1:05-cv-08136-DC Document 1035-2

Filed 07/27/12 Page 1 of 2

EXHIBITB

A-242

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Case 1:05-cv-08136-DC Document 1035-2

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Case 1:05-cv-08136-DC Document 1035-6

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Case 1:05-cv-08136-DC Document 1035-6

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A-251
Case 1:05-cv-08136-DC Document 1035-7

Filed 07/27/12 Page 1 of 8

EXHffiITG

A-252
Case 1:05-cv-08136-DC Document 1035-7

Filed 07/27/12 Page 2 of 8

Coogle books
About Google Books
• Overview
• Blog
• User Stories
• General Help
Partner Program
• For Publishers &
Authors
• Join Now
• Partner Help
Library Project
• Overview
• Library Partners
• Librarian Help
Perspectives
• What's the Issue?
• Facts & Fiction
• Legal Analysis

Add Book Search to
your site

User Stories
Hear what our users are saying...

Share your story with us...

Message from: Jennifer
Teacher, Spok ane, WA
"Thanks for turning me on to this service! It is just like browsing in a book store but
online. I foresee my pocketbook getting lots of use!"

Message from: John
Retired, Godalming, Surrey, UK
"Today I was browsing Google [Book Search] for the first time and immediately
found three in-print books on the subject I am researching. That's three books I am
about to buy.

Message from: Kay
Attorney, San Diego, CA
"I heard about Google's additional features at a genealogical society meeting, so I
decided to try out Google [Book Search] by checking the names of a couple of
ancestors. The first search produced a photograph of a relative I had never seen
before--I immediately ordered a copy of the book it was in. The second search turned
up several references to an ancestor in historical works I would probably never have
found without Google [Book Search]."

Message from: Blake
Attorney, Pelham. NY
"[Google Books] is now is a search tool that cannot be ignored by local
historians...the Google [Book Search] service is as easy to use as -- well -Google!...I have successfully purchased a number of books in this fashion."

Message from: Kirsten
Policy Communications Analyst, Bear, DE
"I used Google Books for the first time today, and have already ordered a copy of a
book for our company library. I would never have found this book, or been able to
determine if it was worth ordering, without Google Books."

Message from: Chris
Book seller, Denton, TX

A-253
Case 1:05-cv-08136-DC Document 1035-7

Filed 07/27/12 Page 3 of 8

"I was fooling around with Google [Book Search] today and discovered that I am
cited in Hybrid Fictions: American Literature and Generation X. Far out. The first
thing I did was go to Amazon to order a copy."

Message from: Richard
Web Analyst, New Zealand
"I gave Google [Book Search] a test run...I came across a fascinating result when I
searched for my own name "macmanus". The first search result was a book by
Stephen Fox called The Mirror Mak ers: A History of American Advertising and Its
Creators. I'm off to go buy that Stephen Fox book ;-)"

Message from: Fred
Consultant, Newton, PA
"I've been waiting for this since I first learned about the web...thank you for finally
delivering it. In 5 minutes, with my first search, I found a facsimile, written in his own
hand, of Lincoln 's Gettysburg address buried in the middle of a children's book
published in 1896. And it was simple."

Message from: Zohair
Student, Sacramento, CA
"I love Google Books because you get to look at the book, check out how the print
looks, see if it is the right edition, and see if you'd be interested. Today I found a
book on here I couldn't find anywhere in town and I was able to buy it from Amazon
because of it. Thank you Google."

Message from: John
Author, Editor, Publisher, Cincinnati, OH
"[Google Books] is an indispensable service that benefits readers, researchers,
writers, authors, and publishers by making information accessible to all rather than
merely to those who live near a research library. I cannot physically nor financially
travel to distant libraries for my research on Latin American history that is contained
in hard to find or out of print books. I hope Google will continue this service
unhindered and in fact expand it to include libraries around the world."

Message from: Kathleen
Pleasant Hill, CA
"I tested [Google Books] by typing in my maiden name. Wow! I had no idea that my
uncle was mentioned in a book -- The Book of Renee by Renn Martin -- that he built
an x-ray machine, and that the author of the book wondered where he was today and
wished him well! I passed that information on to him -- I am sure he has already
bought the book by now!"

Message from: O. Ali
Student, India

A-254
Case 1:05-cv-08136-DC Document 1035-7

Filed 07/27/12 Page 4 of 8

"I went to search for some very old books written in about 1968-9, which were a part
of my HR training, and found them online at Google Books. I couldn't find them for
last 7 months. Now I am definitely going to buy them."

Message from: Penny
Book Mark eting Specialist and Publicist, San Diego, CA
"As a publicist I'm front line everyday trying to push my authors into the spotlight
and the facts are brutal. I have seen authors with great books struggle to get
*anyone's* attention. To me, Google [Book Search] is another way for them to get
noticed in a noisy world and it's another way for readers to find the books they might
not otherwise be exposed to. Forgive the cliche but it sounds pretty win-win to me.
So if you're an author looking for another way to "get out there" give Google [Book
Search] a look-see. In my opinion if you're not using every avenue to promote your
book then you're not only doing your career a disservice but cheating your potential
reader out of some pretty great stuff."

Message from: Bob
Ph.D. Candidate, New York , NY
"I just came across a copy of the classic philosophy text Principia Ethica in your
catalog of books and what I want to tell you is WOW!!! Thank you, thank you, thank
you. The fact that the book retains the pagination of the original but is fully
searchable is a dream come true for scholarly research. This is an extraordinary
service to the public. Again, my thanks and my congratulations to you. This is an
advancement of historic significance... I own a hard copy and have read many article
on this book, but what Google offers has really made it easier to write on this book...
I'm working on a Ph.D. dissertation in philosophy and education, and there are a few
books that you have placed on line that are pertinent to my dissertation. All of these
books are classics and I own them all. What is interesting, though, is that for those
books you have online that are different editions from the one I own, I am inclined to
buy the books anew so as to be able to refer to the copy you have online... I know of
no better method for doing textual analysis than by using your service."

Message from: David
Editor/Writer, Alexandria, VA
"My own verdict: Google [Book Search] is potentially an extremely useful service,
especially if publishers understand this is a help, not a threat. Books in most cases
will benefit if included. If a book is already in the database and mentions a phrase of
interest, you can find it lickety-split. The famous Google interface works great."

Message from: Yvonne
Product Manager, Sunnyvale, CA
"I was looking to find symptoms of different knee injuries to see which ones matched
what I had experienced...there was a section at the top of the page offering Google
[Book Search] titles, and I clicked through to the book Disorders of the
Patellofemoral Joint. I read a few of the passages describing the treatment and
surgery. Based on what I had read, I diagnosed my condition as a lateral patellar
dislocation...I was very relieved to convince myself that it was not an ACL tear.
When my doctor got the MRI results back, my diagnosis was right on!"

A-255
Case 1:05-cv-08136-DC Document 1035-7

Filed 07/27/12 Page 5 of 8

Message from: Jerry
Retired Teacher, Portland, OR
"Years ago I was cycle touring with my sons in France and we came across a
church in Avranches that held in a special display case a skull. I had forgotten the
details so my first search on Google [Book Search] pulled up the story of SaintAubert and how he allegedly came to have a hole in his skull. The story was found in
the Theosophical Quarterly Magazine 1927-1928, a source I would have never likely
found other than through Google [Book Search]. Pretty darn cool."

Message from: Brendan
Student, West Chester, PA
"I would like to comment on how useful Google [Book Search] truly is. While trying
to write a comparative paper on a novel, I remembered a passage of text I wanted to
reference, but had no clue as to where in the book it was. I was able to find the novel
with great ease on Google [Book Search] and then search the text for the passage I
was looking for. The page I needed was restricted however enough of the query
context appeared to guide me to the right spot in my own copy of the book. Even
factoring in the amount of time it took me to IM a friend of mine, tell her how excited
I was about the whole situation and write this feedback letter, I'm still saving time by
not having to read large swaths of the book again."

Message from: Anonymous
"I live in Brazil and I am doing a Master degree in Translation Studies. Many books
that are good for my research are not easy to find over here and I found them in
Google [Book Search]."

Message from: Jean
Melbourne, Australia
"My family found out a couple of years ago that we were descended from a small
aristocratic Scottish family. By using Google Books, I've been able to discover many
references to my ancestors in 18th and 19th century books that are not accessible
in Australian libraries. I even found a record of my family tree back to King Alfred the
Great! Google Books makes it a real possibility for us to write a comprehensive and
interesting family history!"

Message from: Nicole
Student, UK
"Just wanted to send you the largest possible thank you – I'm doing my dissertation
on Samuel Richardson's Clarissa – It's 1500 pages and too long to search manually,
and too old/long/dense for anyone else to have it online. My boyfriend showed me
this site when I was close to a nervous breakdown trying to find specific passages.
Thank you, thank you, thank you for having so much of it available. You have kept
me sane."

A-256
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Filed 07/27/12 Page 6 of 8

Message from: Rex
Student, Austin, TX
"As a researcher and author at a major university, I use Google Books to find
relevant portions of books that my university holds in its library which I could not sort
through in a timely manner otherwise. This has revolutionized my capability to
perform literature reviews for my work and to spend more time synthesizing my own
ideas from the work that has already been done."

Message from: Lucy
Website Editor, Palo Alto, CA
"I think it's a great idea that Google is scanning books of publishers so that more
texts can be available online. I hope lots of publishers are participating! ... I have two
preschool age children and we are passionate about books. It would be so wonderful
if I could read some or all of these books online to decide whether I want to buy
them. Publishers need to understand that offering text online will only HELP not
hinder their sales. For no online experience can ever equal the joy of curling up on
your couch with a good book...or the joy of having your child on your lap as you
read."

Message from: Rachel
Librarian, Columbia, MO
"I am a librarian at a large academic library. I have been promoting Google [Books
Search] to all the students and faculty who come to our reference desk...Faculty like
it both as a research tool and as a tool that helps them make their cases for tenure - they can now find out about books that cite their work. Heck, this could be a great
tool for publishers, to see what books on their backlists are still getting play and
might use a new edition or a reprint. I am also using Google [Book Search] as a tool
to help me decide how to spend that part of my book budget that is discretionary. If
a book cites another book that I already know is good, if it cites a faculty author, if it
has information on a certain, narrow topic of interest to a particular faculty member, I
can now go out of my way to buy that book...The fact that Google keeps readers
from paging through the whole book online means that readers get an excellent
teaser which helps commit them to a sale or a request that their library buy the
book."

Message from: Kalyan
Engineer, Evanston, IL
"I was searching for a topic called "Simulated annealing in VLSI". I've searched in
local libraries, but I couldn't find [anything]."Simulated annealing" is a small topic.
the local library searches allow the search only by title, author etc. I searched for
that in Google [Book Search] and found many books, and I immediately bought two
of those books..."

Message from: Bernie
Technology Professional, Columbia, SC
"While searching the collection in Google's virtual library for instances of my family

A-257
Case 1:05-cv-08136-DC Document 1035-7

Filed 07/27/12 Page 7 of 8

surname, Robichau, I found something remarkable. A book by James W. Baker
titled Plymouth Laborand Leisure (Images of America) contained an instance of the
word "Robichau," and clicking through the link brought me to a photo of my great
uncle, Earl Robichau, from 1914. I could tell who the Robichau in the photograph
was…the family resemblance is remarkable. Never before could I have found such an
obscure and wonderful gem. Tonight, Google [Book Search] prompted me to buy two
"hardcopies" of books that I never would have purchased, or even known about."

Message from: Patrick
Educational Director, Worcester, MA
"I run a nonprofit computer lab. We have a large amount of unprivileged children in
the lab. Just thought you would like to know that they discovered Google [Book
Search] and loved it. They were using it for school work and showing others how to
use it. Thanks again for the great products!"

Message from: Jaemi
Goshen, NY
"Earlier this week our new Teen Services librarian came in with this story: She was
helping a fifth-grader try to find a book for a report…She had looked in all the
sections she thought were applicable in the shelves and found nothing. So she
tried…Google Books. In the end, they found a book in a section they would never
otherwise have thought to look. Child: happy, staff: happy, homework: saved."

Message from: Erich
Geotechnical Engineer, Seattle. WA
"Great tool for finding technical books. I'm a geotechnical engineer and one of the
hardest things for me is finding references. I'll do a library online catalog search find
the book that interests me based on the title, then physically go to the library only to
find out that it wasn't what I was looking for. Now I can look inside the book, then
determine if I would like to check the book out...Thanks a lot!"

Message from: Anonymous
"I LOVE Google [Book Search]!!! I am writing a paper on the history of statistics and
was disheartened when I picked up Claude Bernard's Introduction to Experimental
Medicine - because it did not have an index. But then I found you."

Message from: Joanna
PhD Student, Poland
"I am a PhD student and Google Books is of great help to me. I can browse through
books which are unavailable in Polish libraries."

Message from: Don
Author, Las Vegas, NV

A-258
Case 1:05-cv-08136-DC Document 1035-7

Filed 07/27/12 Page 8 of 8

"As an author whose books appear in Google [Book Search], I want to express my
support for the project. I appreciate potential readers being able to find my book,
examine an excerpt – as they might do while leafing through the book at a store, or
as they might do on a major seller like Amazon – and deciding for themselves if the
book is for them…Google is not in any way alleviating the need for books to exist or
be purchased, and in fact are making these books more noticeable and accessible
than ever before."

Message from: Tom
Student, Gloucester, MA
"For the third time in the past week, I've been able to answer thorny reference
questions using Google [Book Search] that I otherwise would have simply given up
on...on a lark I tried Google [Book Search], since it had been so helpful in my
assisting other patrons in finding what had seemed to be unfindable via the
traditional routes of library research. And lo and behold -- there was my mystery
reference...Although the bibliography was itself within copyright, I was permitted to
view the page on which the search engine had found a match, and that was more
than enough to steer me to the proper volume on the shelves here at the library.
Mission accomplished! The implications of this mass digitization movement are
nothing less than staggering. For a long time I despaired for the future of humanistic
studies. But Google [Book Search] and similar endeavors have given me a burst of
optimism. Not only will scholarship in these fields be enhanced as a result of
digitization, but it will become more relevant as well ...The more that is scanned and
made searchable, the more humanity as a whole will benefit..."

Message from: Paul
Retired, Adelaide, Australia
"I discovered Google [Book Search] this evening and what a delight it is...I belong to
several libraries, and all of them have a suggestion box for "requests to buy new
books", I will now be able to suggest many more using Google [Book Search]. I will
now have the greatest choice in making recommendations."

Message from: Euan
UK
"My gob is well and truly smacked! Google [Book Search] is up and running, looks
very impressive, and has already introduced me to two facts that blew me away. I
did a search for books referring to my home town of Strathaven in Lanarkshire and
came up with two real surprises."

Share your Google Books success story.
©2011 Google - Home - About Google - Privacy Policy

A-259
Case 1:05-cv-08136-DC Document 1035-8

Filed 07/27/12 Page 1 of 8

EXHIBITH

A-260

Filed 07/27/12 Page 2 of 8

Quantitative Analysis of Culture
Using Millions of Digitized Books
Jean-Baptiste Michel,1,2,3,4,5*† Yuan Kui Shen,2,6,7 Aviva Presser Aiden,2,6,8 Adrian Veres,2,6,9
Matthew K. Gray,10 The Google Books Team,10 Joseph P. Pickett,11 Dale Hoiberg,12
Dan Clancy,10 Peter Norvig,10 Jon Orwant,10 Steven Pinker,5
Martin A. Nowak,1,13,14 Erez Lieberman Aiden1,2,6,14,15,16,17*†
We constructed a corpus of digitized texts containing about 4% of all books ever printed. Analysis of this
corpus enables us to investigate cultural trends quantitatively. We survey the vast terrain of ‘culturomics,’
focusing on linguistic and cultural phenomena that were reflected in the English language between
1800 and 2000. We show how this approach can provide insights about fields as diverse as lexicography,
the evolution of grammar, collective memory, the adoption of technology, the pursuit of fame,
censorship, and historical epidemiology. Culturomics extends the boundaries of rigorous quantitative
inquiry to a wide array of new phenomena spanning the social sciences and the humanities.
eading small collections of carefully chosen works enables scholars to make powerful inferences about trends in human
thought. However, this approach rarely enables
precise measurement of the underlying phenomena. Attempts to introduce quantitative methods
into the study of culture (1–6) have been hampered by the lack of suitable data.
We report the creation of a corpus of
5,195,769 digitized books containing ~4% of all
books ever published. Computational analysis of
this corpus enables us to observe cultural trends
and subject them to quantitative investigation.
‘Culturomics’ extends the boundaries of scientific
inquiry to a wide array of new phenomena.
The corpus has emerged from Google’s effort
to digitize books. Most books were drawn from
over 40 university libraries around the world.
Each page was scanned with custom equipment
(7), and the text was digitized by means of optical
character recognition (OCR). Additional volumes, both physical and digital, were contributed

R

1

Program for Evolutionary Dynamics, Harvard University,
Cambridge, MA 02138, USA. 2Cultural Observatory, Harvard
University, Cambridge, MA 02138, USA. 3Institute for
Quantitative Social Sciences, Harvard University, Cambridge,
MA 02138, USA. 4Department of Psychology, Harvard
University, Cambridge, MA 02138, USA. 5Department of
Systems Biology, Harvard Medical School, Boston, MA 02115,
USA. 6Laboratory-at-Large, Harvard University, Cambridge, MA
02138, USA. 7Computer Science and Artificial Intelligence
Laboratory, Massachusetts Institute of Technology (MIT),
Cambridge, MA 02139, USA. 8Harvard Medical School, Boston,
MA, 02115, USA. 9Harvard College, Cambridge, MA 02138,
USA. 10Google, Mountain View, CA 94043, USA. 11Houghton
Mifflin Harcourt, Boston, MA 02116, USA. 12Encyclopaedia
Britannica, Chicago, IL 60654, USA. 13Department of Organismic
and Evolutionary Biology, Harvard University, Cambridge, MA
02138, USA. 14Department of Mathematics, Harvard University, Cambridge, MA 02138, USA. 15Broad Institute of
Harvard and MIT, Harvard University, Cambridge, MA 02138,
USA. 16School of Engineering and Applied Sciences, Harvard
University, Cambridge, MA 02138, USA. 17Harvard Society of
Fellows, Harvard University, Cambridge, MA 02138, USA.
*These authors contributed equally to this work.
†To whom correspondence should be addressed. E-mail:
[e-mail] (J.-B.M.); [e-mail] (E.L.A.)

176

by publishers. Metadata describing the date and
place of publication were provided by the libraries and publishers and supplemented with
bibliographic databases. Over 15 million books
have been digitized [~12% of all books ever
published (7)]. We selected a subset of over 5
million books for analysis on the basis of the
quality of their OCR and metadata (Fig. 1A and
fig. S1) (7). Periodicals were excluded.
The resulting corpus contains over 500 billion
words, in English (361 billion), French (45 billion),
Spanish (45 billion), German (37 billion), Chinese
(13 billion), Russian (35 billion), and Hebrew
(2 billion). The oldest works were published in
the 1500s. The early decades are represented by
only a few books per year, comprising several
hundred thousand words. By 1800, the corpus
grows to 98 million words per year; by 1900, 1.8
billion; and by 2000, 11 billion (fig. S2).
The corpus cannot be read by a human. If you
tried to read only English-language entries from
the year 2000 alone, at the reasonable pace of 200
words/min, without interruptions for food or sleep,
it would take 80 years. The sequence of letters is
1000 times longer than the human genome: If
you wrote it out in a straight line, it would reach
to the Moon and back 10 times over (8).
To make release of the data possible in light
of copyright constraints, we restricted this initial
study to the question of how often a given 1-gram
or n-gram was used over time. A 1-gram is a string
of characters uninterrupted by a space; this includes words (“banana”, “SCUBA”) but also numbers (“3.14159”) and typos (“excesss”). An n-gram
is a sequence of 1-grams, such as the phrases “stock
market” (a 2-gram) and “the United States of
America” (a 5-gram). We restricted n to 5 and limited our study to n-grams occurring at least 40
times in the corpus.
Usage frequency is computed by dividing the
number of instances of the n-gram in a given year
by the total number of words in the corpus in that
year. For instance, in 1861, the 1-gram “slavery”
appeared in the corpus 21,460 times, on 11,687

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pages of 1208 books. The corpus contains
386,434,758 words from 1861; thus, the frequency
is 5.5 × 10−5. The use of “slavery” peaked during
the Civil War (early 1860s) and then again during
the civil rights movement (1955–1968) (Fig. 1B)
In contrast, we compare the frequency of “the
Great War” to the frequencies of “World War I”
and “World War II”. References to “the Great
War” peak between 1915 and 1941. But although
its frequency drops thereafter, interest in the underlying events had not disappeared; instead, they
are referred to as “World War I” (Fig. 1C).
These examples highlight two central factors
that contribute to culturomic trends. Cultural change
guides the concepts we discuss (such as “slavery”).
Linguistic change, which, of course, has cultural
roots, affects the words we use for those concepts
(“the Great War” versus “World War I”). In this
paper, we examine both linguistic changes, such
as changes in the lexicon and grammar, and cultural phenomena, such as how we remember people and events.
The full data set, which comprises over two
billion culturomic trajectories, is available for
download or exploration at www.culturomics.org
and ngrams.googlelabs.com.
The size of the English lexicon. How many
words are in the English language (9)?
We call a 1-gram “common” if its frequency is
greater than one per billion. [This corresponds to
the frequency of the words listed in leading dictionaries (7) (fig. S3).] We compiled a list of all
common 1-grams in 1900, 1950, and 2000, based
on the frequency of each 1-gram in the preceding decade. These lists contained 1,117,997 common 1-grams in 1900, 1,102,920 in 1950, and
1,489,337 in 2000.
Not all common 1-grams are English words.
Many fell into three nonword categories: (i) 1-grams
with nonalphabetic characters (“l8r”, “3.14159”),
(ii) misspellings (“becuase”, “abberation”), and
(iii) foreign words (“sensitivo”).
To estimate the number of English words, we
manually annotated random samples from the
lists of common 1-grams (7) and determined what
fraction were members of the above nonword
categories. The result ranged from 51% of all
common 1-grams in 1900 to 31% in 2000.
Using this technique, we estimated the number of words in the English lexicon as 544,000 in
1900, 597,000 in 1950, and 1,022,000 in 2000.
The lexicon is enjoying a period of enormous
growth: The addition of ~8500 words/year has
increased the size of the language by over 70%
during the past 50 years (Fig. 2A).
Notably, we found more words than appear in
any dictionary. For instance, the 2002 Webster’s
Third New International Dictionary (W3), which
keeps track of the contemporary American lexicon,
lists approximately 348,000 single-word wordforms
(10); the American Heritage Dictionary of the English Language, Fourth Edition (AHD4) lists
116,161 (11). (Both contain additional multiword
entries.) Part of this gap is because dictionaries often

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exclude proper nouns (fig. S4) and compound
words (“whalewatching”). Even accounting for
these factors, we found many undocumented words,
such as “aridification” (the process by which a geographic region becomes dry), “slenthem” (a musical
instrument), and, appropriately, the word “deletable.”
This gap between dictionaries and the lexicon
results from a balance that every dictionary must
strike: It must be comprehensive enough to be a
useful reference but concise enough to be printed,
shipped, and used. As such, many infrequent
words are omitted. To gauge how well dictionaries reflect the lexicon, we ordered our year-2000
lexicon by frequency, divided it into eight deciles
(ranging from 10−9 to 10−8, to 10−2 to 10−1) and
sampled each decile (7). We manually checked
how many sample words were listed in the
Oxford English Dictionary (OED) (12) and in the
Merriam-Webster Unabridged Dictionary (MWD).
(We excluded proper nouns, because neither the
OED nor MWD lists them.) Both dictionaries
had excellent coverage of high-frequency words
but less coverage for frequencies below 10−6:
67% of words in the 10−9 to 10−8 range were
listed in neither dictionary (Fig. 2B). Consistent
with Zipf’s famous law, a large fraction of the
words in our lexicon (63%) were in this lowestfrequency bin. As a result, we estimated that 52%
of the English lexicon—the majority of the words
used in English books—consists of lexical “dark
matter” undocumented in standard references (12).
To keep up with the lexicon, dictionaries are
updated regularly (13). We examined how well
these changes corresponded with changes in actual usage by studying the 2077 1-gram headwords
added to AHD4 in 2000. The overall frequency of
these words, such as “buckyball” and “netiquette”,
has soared since 1950: Two-thirds exhibited recent

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RESEARCH ARTICLE
dwelled. We defined a verb’s “regularity” as the
percentage of instances in the past tense (i.e., the
sum of “drived”, “drove”, and “driven”) in which
the regular form is used. Most irregulars have been
stable for the past 200 years, but 16% underwent
a change in regularity of 10% or more (Fig. 2F).
These changes occurred slowly: It took 200
years for our fastest-moving verb (“chide”) to go
from 10% to 90%. Otherwise, each trajectory
was sui generis; we observed no characteristic
shape. For instance, a few verbs, such as “spill”,
regularized at a constant speed, but others, such
as “thrive” and “dig”, transitioned in fits and starts
(7). In some cases, the trajectory suggested a reason for the trend. For example, with “sped/speeded”
the shift in meaning from “to move rapidly” and
toward “to exceed the legal limit” appears to have
been the driving cause (Fig. 2G).
Six verbs (burn, chide, smell, spell, spill, and
thrive) regularized between 1800 and 2000 (Fig.
2F). Four are remnants of a now-defunct phonological process that used -t instead of -ed; they are
members of a pack of irregulars that survived by
virtue of similarity (bend/bent, build/built, burn/
burnt, learn/learnt, lend/lent, rend/rent, send/sent,
smell/smelt, spell/spelt, spill/spilt, and spoil/spoilt).
Verbs have been defecting from this coalition for
centuries (wend/went, pen/pent, gird/girt, geld/
gelt, and gild/gilt all blend/blent into the dominant -ed rule). Culturomic analysis reveals that
the collapse of this alliance has been the most
significant driver of regularization in the past
200 years. The regularization of burnt, smelt, spelt,
and spilt originated in the United States; the
forms still cling to life in British English (Fig. 2,
E and F). But the -t irregulars may be doomed in
England too. Each year, a population the size of
Cambridge adopts “burned” in lieu of “burnt”.

sharp increases in frequency (>2× from 1950 to
2000) (Fig. 2C). Nevertheless, there was a lag between lexicographers and the lexicon. Over half
the words added to AHD4 were part of the English
lexicon a century ago (frequency >10−9 from 1890
to 1900). In fact, some newly added words, such
as “gypseous” and “amplidyne”, have already undergone a steep decline in frequency (Fig. 2D).
Not only must lexicographers avoid adding
words that have fallen out of fashion, they must
also weed obsolete words from earlier editions.
This is an imperfect process. We found 2220 obsolete 1-gram headwords (“diestock”, “alkalescent”) in AHD4. Their mean frequency declined
throughout the 20th century and dipped below
10−9 decades ago (Fig. 2D, inset).
Our results suggest that culturomic tools will
aid lexicographers in at least two ways: (i) finding low-frequency words that they do not list, and
(ii) providing accurate estimates of current frequency trends to reduce the lag between changes
in the lexicon and changes in the dictionary.
The evolution of grammar. Next, we examined grammatical trends. We studied the English
irregular verbs, a classic model of grammatical
change (14–17). Unlike regular verbs, whose past
tense is generated by adding -ed (jump/jumped),
irregular verbs are conjugated idiosyncratically
(stick/stuck, come/came, get/got) (15).
All irregular verbs coexist with regular competitors (e.g., “strived” and “strove”) that threaten
to supplant them (Fig. 2E and fig. S5). Highfrequency irregulars, which are more readily
remembered, hold their ground better. For instance, we found “found” (frequency: 5 × 10−4)
200,000 times more often than we finded “finded.”
In contrast, “dwelt” (frequency: 1 × 10−5) dwelt in
our data only 60 times as often as “dwelled”

Fig. 1. Culturomic analy- A
B 1.0 ;"- 4'____~---~--~--~
' e :::
ses study millions of books
slavery
at once. (A) Top row: Authors have been writing
17
for millennia; ~129 million book editions have
5- 0.5
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I'!
129 million books
"advent of the printing press
published
(upper left). Second row:
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1800
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1900
1950
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analyzed
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over time (1800–2000).
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“slavery”. The Civil War (1861–1865) and the civil rights movement (1955–1968) are highlighted in red. The number in the upper left (1e-4 = 10–4) is the unit
of frequency. (C) Usage frequency over time for “the Great War” (blue), “World War I” (green), and “World War II” (red).

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177

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Case
RESEARCH ARTICLE 1:05-cv-08136-DC Document 1035-8

Filed 07/27/12 Page 4 of 8

Although irregulars generally yield to regulars, two verbs did the opposite: light/lit and
wake/woke. Both were irregular in Middle English,
were mostly regular by 1800, and subsequently
backtracked and are irregular again today. The
fact that these verbs have been going back and
forth for nearly 500 years highlights the gradual
nature of the underlying process.
Still, there was at least one instance of rapid
progress by an irregular form. Presently, 1% of

the English-speaking population switches from
“sneaked” to “snuck” every year. Someone will
have snuck off while you read this sentence. As
before, this trend is more prominent in the United
States but recently sneaked across the Atlantic:
America is the world’s leading exporter of both
regular and irregular verbs.
Out with the old. Just as individuals forget
the past (18, 19), so do societies (20) (fig. S6). To
quantify this effect, we reasoned that the fre-

quency of 1-grams such as “1951” could be used
to measure interest in the events of the corresponding year, and we created plots for each year
between 1875 and 1975.
The plots had a characteristic shape. For
example, “1951” was rarely discussed until
the years immediately preceding 1951. Its frequency soared in 1951, remained high for 3 years,
and then underwent a rapid decay, dropping by
half over the next 15 years. Finally, the plots

Fig. 2. Culturomics has profound consequences for
the study of language, lexicography, and grammar.
(A) The size of the English lexicon over time. Tick
marks show the number of single words in three
dictionaries (see text). (B) Fraction of words in the
lexicon that appear in two different dictionaries as a
function of usage frequency. (C) Five words added
by the AHD in its 2000 update. Inset: Median frequency of new words added to AHD4 in 2000. The
frequency of half of these words exceeded 10−9 as
far back as 1890 (white dot). (D) Obsolete words
added to AHD4 in 2000. Inset: Mean frequency of
the 2220 AHD headwords whose current usage frequency is less than 10−9. (E) Usage frequency of
irregular verbs (red) and their regular counterparts
(blue). Some verbs (chide/chided) have regularized
during the past two centuries. The trajectories for
“speeded” and “speed up” (green) are similar, reflecting the role of semantic factors in this instance
of regularization. The verb “burn” first regularized
in the United States (U.S. flag) and later in the
United Kingdom (UK flag). The irregular “snuck” is
rapidly gaining on “sneaked”. (F) Scatterplot of the
irregular verbs; each verb’s position depends on its
regularity (see text) in the early 19th century (x coordinate) and in the late 20th century (y coordinate).
For 16% of the verbs, the change in regularity was
greater than 10% (large font). Dashed lines separate irregular verbs (regularity < 50%) from regular verbs (regularity > 50%). Six verbs became
regular (upper left quadrant, blue), whereas two became irregular (lower right quadrant, red). Inset:
The regularity of “chide” over time. (G) Median regularity of verbs whose past tense is often signified
with a -t suffix instead of -ed (burn, smell, spell, spill,
dwell, learn, and spoil) in U.S. (black) and UK (gray)
books.

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178

14 JANUARY 2011

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1988

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I

A-263

Case 1:05-cv-08136-DC Document 1035-8

contrast, “1973” declined to half its peak by
1983, a lag of only 10 years. We are forgetting
our past faster with each passing year (Fig. 3A).
We were curious whether our increasing
tendency to forget the old was accompanied by
more rapid assimilation of the new (21). We divided a list of 147 inventions into time-resolved
cohorts based on the 40-year interval in which

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Fig. 3. Cultural turnover is accelerating. (A) We forget: frequency of “1883”
(blue), “1910” (green), and “1950” (red). Inset: We forget faster. The half-life
of the curves (gray dots) is getting shorter (gray line: moving average). (B) Cultural
adoption is quicker. Median trajectory for three cohorts of inventions from three
different time periods (1800–1840, blue; 1840–1880, green; 1880–1920,
red). Inset: The telephone (green; date of invention, green arrow) and radio
(blue; date of invention, blue arrow). (C) Fame of various personalities born
between 1920 and 1930. (D) Frequency of the 50 most famous people born in
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SCIENCE

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they were first invented (1800–1840, 1840–1880,
and 1880–1920) (7). We tracked the frequency
of each invention in the nth year after it was
invented as compared to its maximum value and
plotted the median of these rescaled trajectories
for each cohort.
The inventions from the earliest cohort
(1800–1840) took over 66 years from invention

Frequency

enter a regime marked by slower forgetting:
Collective memory has both a short-term and a
long-term component.
But there have been changes. The amplitude
of the plots is rising every year: Precise dates are
increasingly common. There is also a greater focus on the present. For instance, “1880” declined
to half its peak value in 1912, a lag of 32 years. In

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RESEARCH ARTICLE

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1871 (gray lines; median, thick dark gray line). Five examples are highlighted.
(E) The median trajectory of the 1865 cohort is characterized by four
parameters: (i) initial age of celebrity (34 years old, tick mark); (ii) doubling
time of the subsequent rise to fame (4 years, blue line); (iii) age of peak celebrity
(70 years after birth, tick mark), and (iv) half-life of the post-peak forgetting
phase (73 years, red line). Inset: The doubling time and half-life over time.
(F) The median trajectory of the 25 most famous personalities born between
1800 and 1920 in various careers.
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179

A-264

to widespread impact (frequency >25% of peak).
Since then, the cultural adoption of technology has
become more rapid. The 1840–1880 invention
cohort was widely adopted within 50 years; the
1880–1920 cohort within 27 (Fig. 3B and fig. S7).
“In the future, everyone will be famous for
7.5 minutes” – Whatshisname. People, too, rise to
prominence, only to be forgotten (22). Fame can be
tracked by measuring the frequency of a person’s
name (Fig. 3C). We compared the rise to fame of
the most famous people of different eras. We took
all 740,000 people with entries in Wikipedia,
removed cases where several famous individuals
share a name, and sorted the rest by birth date and
frequency (23). For every year from 1800 to 1950,
we constructed a cohort consisting of the 50 most

famous people born in that year. For example, the
1882 cohort includes “Virginia Woolf” and “Felix
Frankfurter”; the 1946 cohort includes “Bill
Clinton” and “Steven Spielberg”. We plotted the
median frequency for the names in each cohort
over time (Fig. 3, D and E). The resulting trajectories
were all similar. Each cohort had a pre-celebrity
period (median frequency <10−9), followed by a
rapid rise to prominence, a peak, and a slow decline. We therefore characterized each cohort using
four parameters: (i) the age of initial celebrity, (ii)
the doubling time of the initial rise, (iii) the age of
peak celebrity, and (iv) the half-life of the decline
(Fig. 3E). The age of peak celebrity has been consistent over time: about 75 years after birth. But
the other parameters have been changing (fig. S8).

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Fame comes sooner and rises faster. Between the
early 19th century and the mid-20th century, the
age of initial celebrity declined from 43 to 29
years, and the doubling time fell from 8.1 to 3.3
years. As a result, the most famous people alive
today are more famous—in books—than their
predecessors. Yet this fame is increasingly shortlived: The post-peak half-life dropped from 120
to 71 years during the 19th century.
We repeated this analysis with all 42,358
people in the databases of the Encyclopaedia
Britannica (24), which reflect a process of expert
curation that began in 1768. The results were
similar (7) (fig. S9). Thus, people are getting more
famous than ever before but are being forgotten
more rapidly than ever.

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English 33-45 (5090)
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14 JANUARY 2011

VOL 331

10

Suppression index

Year

180

1985

John Howard Lawson
Albert Maltz
Dalton Trumbo
AIYah Bessie
EdWard Dmytryk
Herbert Bibennan
LestsrCo11I

7

Tiananmen

3

1938

Year
D 6 ~'e'--c:.8-~---~-~-~~--~

Frequency

Fig. 4. Culturomics can be used to
detect censorship. (A) Usage frequency of “Marc Chagall” in German (red)
as compared to English (blue). (B)
Suppression of Leon Trotsky (blue),
Grigory Zinoviev (green), and Lev
Kamenev (red) in Russian texts,
with noteworthy events indicated:
Trotsky’s assassination (blue arrow),
Zinoviev and Kamenev executed
(red arrow), the Great Purge (red
highlight), and perestroika (gray arrow). (C) The 1976 and 1989 Tiananmen Square incidents both led to
elevated discussion in English texts
(scale shown on the right). Response
to the 1989 incident is largely absent in Chinese texts (blue, scale shown
on the left), suggesting government
censorship. (D) While the Hollywood Ten were blacklisted (red
highlight) from U.S. movie studios,
their fame declined (median: thick
gray line). None of them were credited in a film until 1960’s (aptly
named) Exodus. (E) Artists and writers in various disciplines were suppressed by the Nazi regime (red
highlight). In contrast, the Nazis themselves (thick red line) exhibited a
strong fame peak during the war
years. (F) Distribution of suppression indices for both English (blue)
and German (red) for the period from
1933–1945. Three victims of Nazi
suppression are highlighted at left
(red arrows). Inset: Calculation of
the suppression index for “Henri
Matisse”.

Filed 07/27/12 Page 6 of 8

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RESEARCH ARTICLE 1:05-cv-08136-DC Document 1035-8

Frequency

I

A-265

Filed 07/27/12 Page 7 of 8
RESEARCH ARTICLE

Occupational choices affect the rise to fame.
We focused on the 25 most famous individuals born
between 1800 and 1920 in seven occupations (actors, artists, writers, politicians, biologists, physicists, and mathematicians), examining how their
fame grew as a function of age (Fig. 3F and fig. S10).
Actors tend to become famous earliest, at
around 30. But the fame of the actors we studied,
whose ascent preceded the spread of television,
rises slowly thereafter. (Their fame peaked at a
frequency of 2 × 10−7.) The writers became famous about a decade after the actors, but rose for
longer and to a much higher peak (8 × 10−7).
Politicians did not become famous until their 50s,
when, upon being elected president of the United
States (in 11 of 25 cases; 9 more were heads of
other states), they rapidly rose to become the
most famous of the groups (1 × 10−6).

Science is a poor route to fame. Physicists and
biologists eventually reached a similar level of
fame as actors (1 × 10−7), but it took them far
longer. Alas, even at their peak, mathematicians
tend not to be appreciated by the public (2 × 10−8).
Detecting censorship and suppression. Suppression of a person or an idea leaves quantifiable
fingerprints (25). For instance, Nazi censorship of
the Jewish artist Marc Chagall is evident by
comparing the frequency of “Marc Chagall” in
English and in German books (Fig. 4A). In both
languages, there is a rapid ascent starting in the
late 1910s (when Chagall was in his early 30s). In
English, the ascent continues. But in German, the
artist’s popularity decreases, reaching a nadir from
1936 to 1944, when his full name appears only
once. (In contrast, from 1946 to 1954, “Marc
Chagall” appears nearly 100 times in the German

A

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the South
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1850

1900

1950

2000

0.0
1800

1850

1900

1950

2000

Year

Fig. 5. Culturomics provides quantitative evidence for scholars in many fields. (A) Historical epidemiology: “influenza” is shown in blue; the Russian, Spanish, and Asian flu epidemics are highlighted.
(B) History of the Civil War. (C) Comparative history. (D) Gender studies. (E and F) History of science. (G)
Historical gastronomy. (H) History of religion: “God”.
www.sciencemag.org

SCIENCE

VOL 331

corpus.) Such examples are found in many countries, including Russia (Trotsky), China (Tiananmen
Square), and the United States (the Hollywood Ten,
blacklisted in 1947) (Fig. 4, B to D, and fig. S11).
We probed the impact of censorship on a
person’s cultural influence in Nazi Germany. Led
by such figures as the librarian Wolfgang Hermann,
the Nazis created lists of authors and artists whose
“undesirable”, “degenerate” work was banned
from libraries and museums and publicly burned
(26–28). We plotted median usage in German for
five such lists: artists (100 names) and writers of
literature (147), politics (117), history (53), and
philosophy (35) (Fig. 4E and fig. S12). We also
included a collection of Nazi party members [547
names (7)]. The five suppressed groups exhibited
a decline. This decline was modest for writers of
history (9%) and literature (27%), but pronounced
in politics (60%), philosophy (76%), and art
(56%). The only group whose signal increased
during the Third Reich was the Nazi party members [a 500% increase (7)].
Given such strong signals, we tested whether
one could identify victims of Nazi repression de
novo. We computed a “suppression index” (s) for
each person by dividing their frequency from
1933 to 1945 by the mean frequency in 1925–1933
and in 1955–1965 (Fig. 4F, inset). In English, the
distribution of suppression indices is tightly centered around unity. Fewer than 1% of individuals
lie at the extremes (s < 1/5 or s > 5).
In German, the distribution is much wider, and
skewed to the left: Suppression in Nazi Germany
was not the exception, but the rule (Fig. 4F). At the
far left, 9.8% of individuals showed strong
suppression (s < 1/5). This population is highly
enriched in documented victims of repression,
such as Pablo Picasso (s = 0.12), the Bauhaus
architect Walter Gropius (s = 0.16), and Hermann
Maas (s < 0.01), an influential Protestant minister
who helped many Jews flee (7). (Maas was later
recognized by Israel’s Yad Vashem as one of the
“Righteous Among the Nations.”) At the other
extreme, 1.5% of the population exhibited a dramatic rise (s > 5). This subpopulation is highly
enriched in Nazis and Nazi-supporters, who benefited immensely from government propaganda (7).
These results provide a strategy for rapidly
identifying likely victims of censorship from a
large pool of possibilities, and highlight how culturomic methods might complement existing historical approaches.
Culturomics. Culturomics is the application
of high-throughput data collection and analysis to
the study of human culture. Books are a beginning, but we must also incorporate newspapers
(29), manuscripts (30), maps (31), artwork (32),
and a myriad of other human creations (33, 34).
Of course, many voices—already lost to time—
lie forever beyond our reach.
Culturomic results are a new type of evidence
in the humanities. As with fossils of ancient creatures, the challenge of culturomics lies in the interpretation of this evidence. Considerations of
space restrict us to the briefest of surveys: a

14 JANUARY 2011

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Case 1:05-cv-08136-DC Document 1035-8

181

A-266

Case
RESEARCH ARTICLE 1:05-cv-08136-DC Document 1035-8
handful of trajectories and our initial interpretations. Many more fossils (Fig. 5 and fig. S13),
with shapes no less intriguing, beckon:
(i) Peaks in “influenza” correspond with
dates of known pandemics, suggesting the value
of culturomic methods for historical epidemiology (35) (Fig. 5A and fig. S14).
(ii) Trajectories for “the North”, “the South”,
and finally “the enemy” reflect how polarization
of the states preceded the descent into the Civil
War (Fig. 5B).
(iii) In the battle of the sexes, the “women”
are gaining ground on the “men” (Fig. 5C).
(iv) “féminisme” made early inroads in
France, but the United States proved to be a more
fertile environment in the long run (Fig. 5D).
(v) “Galileo”, “Darwin”, and “Einstein” may
be well-known scientists, but “Freud” is more
deeply ingrained in our collective subconscious
(Fig. 5E).
(vi) Interest in “evolution” was waning when
“DNA” came along (Fig. 5F).
(vii) The history of the American diet offers
many appetizing opportunities for future research;
the menu includes “steak”, “sausage”, “ice cream”,
“hamburger”, “pizza”, “pasta”, and “sushi”
(Fig. 5G).
(viii) “God” is not dead but needs a new
publicist (Fig. 5H).
These, together with the billions of other
trajectories that accompany them, will furnish a
great cache of bones from which to reconstruct
the skeleton of a new science.
References and Notes
1.
2.
3.
4.

182

E. O. Wilson, Consilience (Knopf, New York, 1998).
D. Sperber, Man (London) 20, 73 (1985).
S. Lieberson, J. Horwich, Sociol. Methodol. 38, 1 (2008).
L. L. Cavalli-Sforza, W. Marcus, X. Feldman, Cultural
Transmission and Evolution (Princeton Univ. Press,
Princeton, NJ, 1981).

Filed 07/27/12 Page 8 of 8

5. P. Niyogi, The Computational Nature of Language
Learning and Evolution (MIT, Cambridge, MA, 2006).
6. G. K. Zipf, The Psycho-biology of Language
(Houghton Mifflin, Boston, 1935).
7. Materials and methods are available as supporting
material on Science Online.
8. E. S. Lander et al.; International Human Genome
Sequencing Consortium, Nature 409, 860 (2001).
9. A. W. Read, Am. Speech 8, 10 (1933).
10. Webster's Third New International Dictionary of the
English Language, Unabridged, P. B. Gove, Ed.
(Merriam-Webster, Springfield, MA, 1993).
11. The American Heritage Dictionary of the English
Language, Fourth Edition, J. P. Pickett, Ed.
(Houghton Mifflin, Boston, 2000).
12. Oxford English Dictionary, J. A. Simpson, E. S. C. Weiner,
M. Proffitt, Eds. (Clarendon, Oxford, 1993).
13. J. Algeo, A. S. Algeo, Fifty Years among the New Words:
A Dictionary of Neologisms, 1941–1991
(Cambridge Univ. Press, Cambridge, 1991).
14. S. Pinker, Words and Rules (Basic Books, New York,
1999).
15. Anthony S. Kroch, Language Variation Change 1,
199 (1989).
16. J. L. Bybee, Language 82, 711 (2006).
17. E. Lieberman, J. B. Michel, J. Jackson, T. Tang,
M. A. Nowak, Nature 449, 713 (2007).
18. B. Milner, L. R. Squire, E. R. Kandel, Neuron 20,
445 (1998).
19. H. Ebbinghaus, Memory: A Contribution to Experimental
Psychology (Dover Publications, New York, 1987).
20. M. Halbwachs, On Collective Memory, Lewis A. Coser,
transl. (Univ. of Chicago Press, Chicago, 1992).
21. S. Ulam, Bull. Am. Math. Soc. 64, 1 (1958).
22. L. Braudy, The Frenzy of Renown: Fame & Its History
(Vintage Books, New York, 1997).
23. Wikipedia, 23 August 2010, www.wikipedia.org/.
24. Encyclopaedia Britannica, D. Hoiberg, Ed.
(Encyclopaedia Britannica, Chicago, 2002).
25. Censorship: 500 Years of Conflict, V. Gregorian, Ed.
(New York Public Library, New York, 1984).
26. W. Treß, Wider Den Undeutschen Geist:
Bücherverbrennung 1933 (Parthas, Berlin, 2003).
27. G. Sauder, Die Bücherverbrennung: 10. Mai 1933
(Ullstein, Frankfurt am Main, Germany, 1985).
28. S. Barron, P. W. Guenther, Degenerate Art: The Fate of
the Avant-garde in Nazi Germany (Los Angeles County
Museum of Art, Los Angeles, 1991).

14 JANUARY 2011

VOL 331

SCIENCE

29. Google News Archive Search, http://news.google.com/
archivesearch.
30. Digital Scriptorium, www.scriptorium.columbia.edu.
31. Visual Eyes, www.viseyes.org.
32. ARTstor, www.artstor.org.
33. Europeana, www.europeana.eu.
34. Hathi Trust Digital Library, www.hathitrust.org.
35. J. M. Barry, The Great Influenza: The Epic Story of the
Deadliest Plague in History (Viking Press, New York, 2004).
36. J.-B.M. was supported by the Foundational Questions in
Evolutionary Biology Prize Fellowship and the Systems
Biology Program (Harvard Medical School). Y.K.S. was
supported by internships at Google. S.P. acknowledges
support from NIH grant HD 18381. E.L.A. was supported
by the Harvard Society of Fellows, the Fannie and
John Hertz Foundation Graduate Fellowship, a National
Defense Science and Engineering Graduate Fellowship, an
NSF Graduate Fellowship, the National Space Biomedical
Research Institute, and National Human Genome Research
Institute grant T32 HG002295. This work was supported by
a Google Research Award. The Program for Evolutionary
Dynamics acknowledges support from the Templeton
Foundation, NIH grant R01GM078986, and the Bill and
Melinda Gates Foundation. Some of the methods described
in this paper are covered by U.S. patents 7463772 and
7508978. We are grateful to D. Bloomberg, A. Popat,
M. McCormick, T. Mitchison, U. Alon, S. Shieber,
E. Lander, R. Nagpal, J. Fruchter, J. Guldi, J. Cauz, C. Cole,
P. Bordalo, N. Christakis, C. Rosenberg, M. Liberman,
J. Scheidlower, B. Zimmer, R. Darnton, and A. Spector for
discussions; to C.-M. Hetrea and K. Sen for assistance with
Encyclopaedia Britannica's database; to S. Eismann,
W. Treß, and the City of Berlin Web site (berlin.de) for
assistance in documenting victims of Nazi censorship; to
C. Lazell and G. T. Fournier for assistance with annotation;
to M. Lopez for assistance with Fig. 1; to G. Elbaz and
W. Gilbert for reviewing an early draft; and to Google’s
library partners and every author who has ever picked up a
pen, for books.

Supporting Online Material
www.sciencemag.org/cgi/content/full/science.1199644/DC1
Materials and Methods
Figs. S1 to S19
References
27 October 2010; accepted 6 December 2010
Published online 16 December 2010;
10.1126/science.1199644

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I

A-267
Case 1:05-cv-08136-DC Document 1036

Filed 07/27/12 Page 1 of 3

DURIE TANGRI LLP
DARALYN J. DURIE (Pro Hac Vice)
[e-mail]
JOSEPH C. GRATZ (Pro Hac Vice)
[e-mail]
DAVID McGOWAN (Pro Hac Vice)
[e-mail]
GENEVIEVE P. ROSLOFF (Pro Hac Vice)
[e-mail]
217 Leidesdorff Street
San Francisco, CA 94111
Telephone:
415-362-6666
Facsimile:
415-236-6300
Attorneys for Defendant
Google Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
THE AUTHORS GUILD, INC., Associational
Plaintiff, BETTY MILES, JOSEPH
GOULDEN, and JIM BOUTON, on behalf of
themselves and all other similarly situated,
Plaintiffs,
v.

Civil Action No. 05 CV 8136 (DC)
ECF Case

GOOGLE INC.,
Defendant.
DECLARATION OF JOSEPH C. GRATZ IN SUPPORT OF DEFENDANT GOOGLE
INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE
SUMMARY ADJUDICATION

A-268
Case 1:05-cv-08136-DC Document 1036

Filed 07/27/12 Page 2 of 3

I, Joseph C. Gratz, hereby declare under penalty of perjury:
1.

I am an attorney duly admitted to practice law in the State of California and in this

Court. I am a member of Durie Tangri LLP, attorneys for Defendant Google Inc. in the abovecaptioned civil action. I submit this declaration in support of Defendant’s Motion for Summary
Judgment. I make this declaration based on personal knowledge of the facts and circumstances
set forth herein.
2.

Attached as Exhibit 1 is a true and correct copy of excerpted pages of the

transcript of the deposition of Paul N. Courant taken herein on April 23, 2012.
3.

Attached as Exhibit 2 is a true and correct copy of excerpted pages of the

transcript of the deposition of Paul Aiken taken herein on April 19, 2012.
4.

Attached as Exhibit 3 is a true and correct copy of excerpted pages of Plaintiffs’

Responses and Objections to Defendant Google Inc.’s First Set of Interrogatories to Plaintiffs
The Authors Guild, Inc., Jim Bouton, Joseph Goulden and Betty Miles herein, served on April
27, 2012.
5.

Attached as Exhibit 4 is a true and correct copy of excerpted pages of the

transcript of the deposition of Judith A. Chevalier taken herein on June 8, 2012.
6.

Attached hereto as Exhibit 5 is a true and correct copy of a February 13, 2012,

letter written by Professor Pamela Samuelson, UC Berkeley School of Law, to The Honorable
Denny Chin, pertaining to this action.
7.

Attached as Exhibit 6 is a true and correct copy of excerpted pages of the

transcript of the deposition of Eric Zohn taken herein on April 13, 2012.

2

A-269
Case 1:05-cv-08136-DC Document 1036

8.

Filed 07/27/12 Page 3 of 3

Attached as Exhibit 7 is a true and correct copy of Exhibit 2 to the deposition of

Eric Zohn taken herein on April 13, 2012.
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed on this 27th day of July, 2012, at San Francisco, California.

/s/ Joseph C. Gratz
Joseph C. Gratz

3

A-270
Case 1:05-cv-08136-DC Document 1036-1

Filed 07/27/12 Page 1 of 13

EXHIBIT 1

A-271
Case 1:05-cv-08136-DC Document 1036-1

Filed 07/27/12 Page 2 of 13

--~-------

Page 1
1

UNITED STATES DISTRICT COURT

2

SOUTHERN DISTRICT OF NEW YORK

3

4

THE AUTHORS GUILD, et al.,

5

Plaintiffs,

6
7

Master File No.
-vs-

05 CV 8136-DC

8

9

GOOGLE, INC.,

10

Defendant.

11

/

12
13
14
15

The Videotaped Deposition of PAUL N. COURANT,

16

Ph.D., Taken at 503 Thompson Street,

17

5021 Fleming Administration Building,

18

Ann Arbor, Michigan,

19

Commencing at 2:00 p.m.,

20

Monday, April 23, 2012,

21

Before Jennifer L. Ward, CSR-3717.

22
23
24

25

212-279-9424

VERITEXT REPORTING COMPANY
www.veritext.com

212-490-3430

A-272
Case 1:05-cv-08136-DC Document 1036-1

Filed 07/27/12 Page 3 of 13

Page 43
1
2

there.

Q.

Great.

So -- thank you.

You mentioned

3

that the digital files are used by people with print

4

disabilities.

5

University of Michigan community, or anyone?

6

A.

Are those people limited to the

With respect to works that are from the

7

University of Michigan files, yes, I believe i t is

8

limited to just the University of Michigan certified

9

users.

10
11

12

Q.

And what is a certified user?

What makes

someone a certified user?
A.

There's an office in the university that

13

determines whether people have print disabilities, and

14

then of course the person has to be a member of the

15

university community.

16

Q.

With respect to digital files of books that

17

are in copyright and that were digitized without the

18

authorization of the rights holder, to whom are those

19

works or those digital files available for search

20

purposes?
MR. PETERSEN:

21
22

BY MR. BONI:

23

Q.

Objection to form.

24

25

.

You said you made them available for search.

I'm asking available to whom?

A.

212-279-9424

So to search for the -- search text as
VERITEXT REPORTING COMPANY
www.veritext.com

212-490-3430

A-273
Case 1:05-cv-08136-DC Document 1036-1

Filed 07/27/12 Page 4 of 13

Page 46
1

where we do have authorization from the rights holder.

2

BY MR. BONI:

3

Q.

4
5

Right.

So let me limit i t to those works

where the rights holder did not give authorization.

A.

So let me just try to see if I can get this

6

set winnowed down to what it is.

These are works that

7

are in copyright, digitized by Google, a copy has come

8

to the University of Michigan, and you're asking who

9

can read the text of those works?

10

Q.

Correct.

11

A.

Right.

12

Q.

You mentioned those at the University of

13

Michigan with print disabilities and then staff for

14

technical and computer purposes --

15

A.

Yes.

16

Q.

17

anyone else.

18

A.

and I'm asking you whether there is

There are some staff who are not staff at

19

the University of Michigan associated with the mirror

20

site at Indiana, and that's all I can think of.

21

Q.

Okay.

Do you know whether any research

22

has been conducted on the digital files which -- where

23

the research does not involve reading the text of the

24

books?
MR. PETERSEN:

25

212-279-9424

Objection to form.

VERITEXT REPORTING COMPANY
www.veritext.com

212-490-3430

A-274
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Filed 07/27/12 Page 5 of 13

Page 85

1

A.

She's the Chief Information Officer.

2

Q.

All right, okay.

Chief information, CIO,

3

all right.

Who replicated the digital works and

4

associated metadata to the active mirror site at IU's

5

Indianapolis campus?
MR. PETERSEN:

7

i

Objection to form.

THE WITNESS:

6

That work would have

8

been done under the general direction of John Wilkin

9

and his counterpoints at Indiana -- counterparts at

10

Indiana.

11

BY MR. BONI:

12

Q.

Okay.

On page 19 in paragraph 67, it's

13

right in the middle of the page, i t says in the

14

second sentence, Defendants also admit that the

15

Hathi Trust Service preserves and secures books that

16

are in copyright, published, and commercially

17

available.

Do you see that language, Dr. Courant?

18

A.

I do.

19

Q.

In what way does Hathi Trust preserve the

20

books referenced here?

21

MR. PETERSEN:

Objection to form.

22

THE WITNESS:

23

operation of the library and has a time scale for

24

preserving its assets that extends into the indefinite

25

future.

The Hathi Trust is an

VERITEXT REPORTING COMPANY

212-279-9424

www.veritext.com

212-490-3430

A-275
Case 1:05-cv-08136-DC Document 1036-1

Filed 07/27/12 Page 6 of 13

Page 86
1

BY MR. BaNI:

2

Q.

What are its assets?

3

A.

Its holdings, copies of works.

Assets may

4

not have been the best word, but copies of works.

5

works are subject to -- print works are subject to all

6

manner of risk of deterioration and destruction over

7

time, and so the sense in which these works are

8

preserved is that we would intend to keep a copy, as I

9

said, into the indefinite future against the

10

possibility that the -- that other copies would

11

And

disappear.

12

MS. DURIE:

I

Can you do me a favor?

13

Can I just get you to move the bottle to one side?

14

videographer was just saying i t was blocking.

15

THE WITNESS:

16

MS. DURIE:

The

Oh, sure.
Thanks.

17

BY MR. BaNI:

18

Q.

Let me ask you to turn to page 21, paragraph

20

A.

I'm there.

21

Q.

There is a block quote there.

19

78.

It appears to

22

be a statement from Michigan Library.

23

this tells us that our pilot process is flawed,

24

referring to the potential orphan works.

25

me what that -- what is meant by the pilot process

212-279-9424

VERITEXT REPORTING COMPANY
www.veritext.com

And i t states,

Can you tell

212-490-3430

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Filed 07/27/12 Page 7 of 13

Page 96
1

that?
A.

2

3

I thought it was an extremely interesting

and positive development.

4

Q.

Why was that?

5

A.

So really a number of reasons.

We had been

6

digitizing our collections ourselves at the rate of

7

about 10,000 volumes a year give or take, and at that

8

rate it was going to take 900 years or so to get the

9

job done.

10

And in fact, it would have taken longer

because we're still acquiring works.

11

And so suddenly it became possible

12

to imagine digitizing close to the whole -- the whole

13

library, and that provided in turn a number of benefits

14

that struck me then and strike me now as being very,

15

very important.

16

notion of search that I talked about earlier.

17

the full text available for search of the works in the

18

i

One, which is really huge, is this
Having

library allows people, scholars, students, faculty, to

19

find works that have subject matter that might not be

20

apparent until the old card catalogs.

21

The old catalog would give you three

22

entries, and if it turned out there was something else

23

important that was number four, it's not there.

24

it turns out that that 4th or 5th or 6th use has words

25

that are characteristic, you can find them in the works

212-279-9424

VERI TEXT REPORTING COMPANY
www.veritext.com

But if

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in the library and then come to the library and use

2

them.

3

The second enormous advantage has to

4

do with preservation.

Many works in the library,

5

millions certainly, several millions, were printed on

6

acid paper, which means that they have within them the

7

seeds of their own -- their own destruction.

8

phenomenon you will have noticed.

9

to time you take an old paperback especially or an old

It's a

You know, from time

10

newspaper off the shelf and it just turns into

11

cornflakes and then dust in your hands.

12

happens to works on acid paper, and in time it happens

13

to all of them.

14

That's what

And by -- knowing that there are

15

millions of such works, identifying them one by one is

16

sort of inconceivably difficult.

17

shelves.

18

that's a big number, and, you know, I just can't

19

imagine the amount of effort that would be involved in

20

finding them one by one.

You have to go to the

I mean it just -- you know, millions or

21

If we go through this process of

22

digitizing essentially the whole collection we then

23

have a preservation copy of works that would otherwise

24
25

I

disappear without replacement.

These works now will in

due course disappear, in due time, but we will be able

212-279-9424

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www.veritext.com

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2

BY MS. DURIE:
Q.

I'm sorry, I apologize.

Is i t correct that

3

the University of Michigan has used copies of --

4

digital copies of books that were scanned by Gooqle to

5

create a searchable index?

6

A.

As part of this project?

7

Q.

Yes.

8

A.

Yes.

9

Q.

And what was the reason for doing that?

10

A.

I think I described it earlier, that i t

11

enables users to find things reliably and easily that

12

they would otherwise not be able to find.

13

Q.

You also mentioned the display, using the

14

work to allow people with print disabilities to gain

15

access to works that they otherwise would not be able

16

to read.

17

actual displays of works in its collection of any of

18

the works as part of the search -- strike that.

19

was terrible question.

20

Has the University of Michiqan made any

That

In connection with this

21

searchable index, does the University of Michiqan allow

22

users to read works that are returned from that

23

searchable index if those works are deemed to be in

24

copyright?
MR. PETERSEN:

25

212-279-9424

So we're off the

VERITEXT REPORTING COMPANY
www.veritext.com

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I

1

subject of students with print disabilities?
Correct.

2

MS. DURIE:

3

MR. PETERSEN:

4

This is a

different -- okay.
THE WITNESS:

5

In cases where the

6

rights holder has authorized it, yes.

7

BY MS. DURIE:
Q.

8

To the extent that the rights holder has not

9

authorized it, does the University of Michigan allow

10

individuals to see the complete copies of works that

11

are returned as search results if those works are in

12

copyright?
MR. PETERSEN:

13

And you're excluding

14

students with print disabilities?

15

BY MS. DURIE:

16

Q.

Excluding students with print disabilities.

17

A.

If the works are either in copyright or not

18

known to be not in copyright, no.

19

Q.

Has the University of Michigan

20

A.

Did I get that grammar right?

21

Q.

Yeah.

22

A.

I believe so.

23

Q.

Yes.

24
2S

Has the University of Michigan put

security measures in place to protect all of the

i

various digital

212-279-9424

CO~ies __that

exist of these w_o_r_k_S_?_ _ _--'

VERITEXT REPORTING COMPANY
www.veritext.com

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A.

1

2

Again, we're talking about this set of works

that we do not know to be in the public domain?

3

Q.

Correct.

4

A.

Yes.

5

Q.

Are you aware of any breaches that have

6

taken place that have allowed those works to become

7

part of the public domain --

8

A.

No.

9

Q.

-- security breaches?

Does the University

10

of Michigan have a budget for the acquisition of new

11

works?

12

A.

Yes.

13

Q.

Is that budget broken down in some fashion

14

departmentally or --

A.

15

It's -- so actually I should back up.

The

16

University of Michigan Library has such a budget.

17

Several other libraries have budgets.

18

libraries have budgets.

19

of entities within the University of Michigan who

20

have -- make budgeted expenditures on library

21

acquisitions, and by far the largest of those entities,

22

but only one of them, is the one of which I am the

23

dean.

24
25

Q.

Departmental

So there are probably dozens

With respect to the entity of which you are

the dean, what is the acquisition budget for that

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VERITEXT REPORTING COMPANY
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entity?

2

A.

3
4

Approximately 20 -- a little bit under

20 million dollars a year.

Q.

Has that budget been affected in any way by

5

the Google Library Project?

6

for example, caused your budget to go down?

In other words, has that,

MR. PETERSEN:

7

8

for acquisitions?

9

When you say budget,

BY MS. DURIE:

10

Q.

For acquisitions, acquisitions.

11

A.

Certainly not in any direct way.

Indirectly

12

the Google Library Project has enhanced the reputation

13

of the library, therefore possibly improved our

14

political ability to get resources from the provost.

15

Q.

Okay.

But i t is not then the case I take i t

16

that the fact that you have digital copies of the works

17

in your collection has itself caused you to start

18

spending less money on book acquisition?

19

A.

No.

20

Q.

Have there ever been circumstances where the

21

University of Michigan has bought additional paper

22

copies of books that i t has in digital form as a result

23

of its participation in the Gooqle Library Project?

24
25

A.

So we have a dangling modifier here.

So we

have i t in digital form as a result of the Google

212-279-9424

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www.veritext.com

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connection with search functionality?

2

BY MS. DURIE:

Q.

3

4

Any.

Just in general.

Presumably yes,

right?

5

A.

Yes.

6

Q.

Okay.

And has the University of Michigan

7

ever paid a rights holder for permission to include a

8

work simply in that index?

9

A.

Not to my knowledge.

10

Q.

Okay.

Now let me take indices that

11

encompass the full text of the work.

12

University of Michigan ever paid a rights holder for

13

permission to have that rights holder's work included

14

in the index where i t was an index of the full text of

15

works?

16

A.

Has the

Again

17

MR. BONI:

18

THE WITNESS:

19

I had no knowledge of

such circumstances.

20

Object to form.

BY MS. DURIE:

21 :

Q.

Okay.

22

A.

So no, as far as I know.

23

Q.

Now, you also mentioned earlier in your

24

testimony the importance of being able to maintain

25

duplicate copies of works as part of a digital archive;
VERITEXT REPORTING COMPANY
212-279-9424

www.veritext.com

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EXHIBIT 2

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Page I
Page 1
1
1

UNITED STATES DISTRICT COURT
UNITED STATES DISTRTCT COURT

2
2

SOUTHERN DISTRICT OF NEW YORK
SOUTHERN DTSTRTCT OF NEW YORK

3
3

4
5
5

THE AUTHORS GUILD, INC.,
THE AUTHORS GUILD, INC. , et
al.
) Civil Action No.
Civil Action
âf.,,
)05-CV-8136 (DC)
05-cv-8136
Plaintiffs,
)
Plaintiffs,
)

6
6

vs.
VS.

)
)

7
1

GOOGLE, INC.,
GOOGLE,

8

Defendant.
)
Defendant
----------------------------)
---)
Thursday, Apri 19, 2012
Thursday, Apri 19,
9:08 a.m.
9:08

)
)

9
10
11
12
I2
13
14
I4
15

Confidential Videotaped Deposition
Confidential Videotaped Deposition
of PAUL AIKEN, held at the offices of
of PAUL AIKEN, heJ-d at the offices of
Milberg, LLP, One Penn Plaza, New York,
Milberg/ LLP, One Penn PLaza, New
New York, pursuant to Rule 30 (b) (6)
New York, pursuant to Rul-e 30 (b)
Notice, before Otis Davis, a Notary
Notice, before Otis Davis, a Notary
Public of the State of New York.
Publ-ic of the State of New

16
76
17
T1

18
1B
19
I9
20
21
2I
22
23
24
25

(# 4 42511
(#442577))

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Page 104
1

Q.

Correct.

2

A.

My belief is that it will search within

3

the text of the actual book as well as within the

4

title and it will return results responsive to the

5

search terms, whether or not the terms are in the

6

title.

7

Q.

Is there any way to create a searchable

8

database of books without scanning the text of books

9

to convert them into digital form?

10

MR. BONI:

Object to form.

11

A.

I don't know.

12

Q.

Are you aware of any way to enable full

13

text searching of a book without making a copy of the

14

entire book?
MR. BONI:

15

16

It's the same question.

Object to form.

17

A.

Repeat the question, please.

18

Q.

Sure.

19

Are you aware of any way to create a

20

searchable index of books without scanning the

21

complete copy of the books included within that

22

index?

23

MR. BONI:

24

THE WITNESS:

25

MR. BONI:

Objection.
Answer?

You can answer.

A-286
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Page 105
1

Q.

You can answer.

2

A.

No.

3

Q.

Prior to Google Books, were there any

4

searchable databases of the text of books?

5
6

MR. BONI:

Object to form.

These

questions all lack foundation.

7

A.

Yes.

8

Q.

What were those databases?

9

A.

Amazon.com had such a database, others

10

may have existed, I don't know the timing of Internet

11

Archive's database, Yahoo! and Microsoft also were

12

engaged in creating such databases.

Q.

13

Did Microsoft ever have a database

14

available to users that allowed for searching the

15

full text of books?
MR. BONI:

16

Object to form.

17

A.

I believe it did.

18

Q.

Do you know when that service was first

19

made available to users?

20

A.

No, I don't.

21

Q.

Other than Amazon, Internet Archive,

22

Yahoo! and Microsoft, are you aware of any other

23

databases that allowed for the full text searching of

24

books?

25

A.

Barnesandnoble.com.

That's all I can

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Page 146
Page L46
Today, do you consider there to be
Today, do you consider there to be

1

a

2
2

potential market for including excerpts of books in
potential market for including excerpts of books tn

3
3

book reviews?
book reviews?

4

A.
A.

No.

5

Q.
O.

is no such potential
In your view, there is no such potential-

6
6

market because the inclusion of quotations in book
market because the inclusion of quotations in

7
7

reviews is sanctioned by
reviews is sanctioned by law?

8

9
9
10
11
11
12
L2

A.
A.

Sanctioned by both I would say free
Sanctioned by both f would say free

speech and fair use grounds.
speech and fair use grounds.

Q.
Earlier in your testimony, you also
Earlier in your testimony, you also
O.
indicated that sometimes people will discover books
indicated that sometimes people wiII dj-scover
in bookstores by browsing them; is that right?
in bookstores by browsing them; is that right?

13
13

A.
A.

Yes.

14
I4

Q.
A.

And when I go into my neighborhood
And when I go into my neighborhood

15
15

bookstore, typically books are available on counters
bookstore, typical-Iy books are available on counters

16
16

for me to pick up and look through; is that right?
for me to pick up and Ìook through; is that right?

17
I1

A.
A.

That's right.
That's right.

18
1B

Q.
O.

Rather than being, for example, like in a
Rather than being, for example, like in a

19
19

pharmacy behind the counter where I would only be
pharmacy behind the counter where I would only

20
20

able to see the cover but not look to see what was
able to see the cover but not look to see what t^/as

21
27

inside?
inside?

))
22
23
23
24
25
25

A.
A.

Generally, bookstores make~books
GeneralJ-y, boo[stores make books

available for browsing.
availabfe for
Q.
O.

Do you have a view as to whether making
Do you have a view as to whether

books available for browsing helps or hurts the sale
books avail-able for browsing helps or hurts the sal-e

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1
1

of books?
of books?

2

A.
A.

You're talking about physical bookstores?
You're tatking about physical bookstores?

3

Q.
O.
A.
A.

Yes, physical bookstores.
Yes, physical- bookstores .

Q.
A.
A.
A.

What is your view?
What is your view?

8
B

Q.
O.

Why is that?
Vühy
that?

9
9

A.
A.

Particularly in physical bookstores
Particularly in physical

4
5

6
6
7
7

Yes, I
Yes, f do.

My view is that it helps the sale of
My view is that it helps the sale of

books.
books.

10
10

holding the book, flipping through the pages, getting
holding the book, flipping through the pages, getting

11
11

a sense for the book makes a reader more likely to
a sense for the book makes a reader more likely to

12
12

buy a book, particularly one from a little known
buy a book, particularly one from a little

13
13

author.
Q.
a.

14
74
15
15

Is that because sometimes the reader gets
Is that because sometimes the reader gets

interested by seeing what's inside the book?
interested by seeing whaL's inside the
MR. BONI:
Object to
MR. BONI: Object to form.

16
76
A.
A.

17
!1

Holding the book, reading it makes it
Holding the book, reading it makes it

18
1B

interesting and you find the content interesting and
interesting and you find the content interesting

19
L9

you may want to purchase it.
you may want to purchase it.
Q.
O.

20
21
2I

to browse books electronically; is that right?
to browse books electronically; is that right?
A.
A.

.A
24
LA

25
25

Yes.
They have the Search Inside the
Yes. They have the Search Inside the

Q.
O.

22
22

23
23

Amazon also has a feature that allows you
Amazon also has a feature that allows you

Is it likewise your view that the Search
Is it likewise your view that the Search

Book.
Book.

Inside the Book feature on Amazon serves to
Inside the Book feature on Amazon serves to

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Page 148
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1
1

facilitate
of
least some
of
facil-itate the sales of at least some types of books?
A.
A.

2

Amazon representatives say that it's true
Amazon representatives say that it's true

3
3

and
believe it's
publishers also say that it
and I bel-ieve it's true; pubfishers al-so say that it

4
4

helps the sale
helps the sal-e of books.

5

7
7

Q.
A number of publishers have entered into
A number of publishers have entered into
O.
the Partner Program with Google and have made certain
the Partner Program with Google and have made certain
pages
works available on Google Books; is that
pages of works avail-able on Google Books; is that

8
B

right?
right?

6
6

9

A.
A.

That's right.
That's right.

10

Q.
O.

Do you have a view as to whether the
Do you have a view as to whether the

11
11

ability to see a few pages of the book on Google
ability to see a few pages of the book on

12
72

Books helps or hurts the sale of those books?
Books helps or hurts the sale of those

13
14
L4

15
15

A.
A.

I believe it helps the sale of
I believe it helps the sale of

commercially available books.
commercially availabl-e

Q.
O.

Was there a period of time during which
Was there a period of time during

16
L6

there was a clearinghouse for licenses for libraries
there was a clearinghouse for licenses for librarres

17
I1

to make archival digital copies of books?
to make archival- digital copies of

18
18

A.
A.

I don't believe so.
I don't believe

19
I9

Q.
O.

Has The Authors Guild ever had any role
Has The Authors Guild ever had any role

20
20

in providing a mechanism for libraries to make
in providing a mechanism for libraries to make

21
2I

archival digital copies?
archival digital copies?

22
22

A.
A.

WelJ, let's see -- well, T.he Authors
well, T.he Authors
Wel_t, let's see

23
23

Guild has been involved, my predecessors and the
Guild has been involved, ilY predecessors and the

24
24

lawyers at the Guild who preceded me, in legislative
lawyers at the Guild who preceded me, in legislative

25
25

efforts to -- under Section 108 of the Copyright Act
under Section 108 of the Copyright Act
efforts to

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1

physical copy of the member's book and creating a

2

digital image file from it?

3

A.

4

involve that.

5

Q.

6

7

8
9

Yes.

The Kaleidoscope Software did

Who paid for that digital image file to

be created?

A.

Kaleidoscope Software, which became known

as 2XL almost immediately.
Q.

Did Kaleidoscope Software receive any

10

compensation in any form for having created that

11

digital file?

12

A.

Well, it was part of a package.

By

13

making -- creating the digital file for the

it was

14

actually the digital template for the printing of

15

print-on-demand books.

16

that the book would then be marketed through 2XL's

17

program.

18

Q.

Part of the agreement was

And 2XL would receive some share in the

19

revenues from the sale of those books; is that

20

correct?

21

A.

That's correct.

22

Q.

What share of the revenues did 2XL

23

receive?

24

A.

I can't recall.

25

Q.

Is that the current instantiation of the

A-291
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1
1

Back
Print Program?
Back In Print Program?

2
2
3
3

Substantially.
Kaleidoscope became 2XL,
Substantiatly. Kaleídoscope became 2XL,
which changed its name to iUniverse, and then there
which changed its name to iUníverse, and then there

4
4

has been some
that have
now Author
has been some acquisitions that have -- now Author

5
5

Solutions
owner of essentially this in-print
Sol-utions is the owner of essentially this in-print

6
6

of reprinted formally out-of-print books.
of reprinted formally out-of-print books.
The things that have changed since the
The things that have changed since the
the program is there was at some point
inception of the program is there was at some point

7
1
8
B

A.

^

10

an amendment to the contract, which slightly
an amendment to the contract, which slightly changed
the royalty
remember what it was,
the royalty rate, I can't remember what it was, what

11

it changed from to, with the intention of having a
with the intention of having
it changed from

12
72

substantially lower retail price.
substantiatly lower retail price.

9
9

13

Other changes have been that originally
Other changes have been that originally

14
t4

the books were available in trade paperback format,
the books were available in trade paperback format,

15

now they can be available as hard covers, some
now they can be available as hard covers,

16
I6

members have chosen to make their books available as
members have chosen to make their books avail-able

17
I1

e-books through the program.
e-books through the program.

Q.
O.

18
1B

SO let me see if I understand how it
So let me see if I understand how it

19
I9

works.
An author provides a physical copy of his or
works. An author provides a physical copy of his or

20
20

her book to iUniverse; is that right?
her book to iUniverse; is that right?

21
2I

A.

Right.
Right.

22
22

Q.

If II refer to the entity that's currently
refer to the entity that's currenlly
If

23
ZJ

making the digital files and providing these services
making the digital files and providing these services

.A
24

as iUniverse, will you understand what I'm talking
as j-Universe, wilt you understand what I'm tal-king

25
25

about?
about?

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Page 174
1

2
3
3

4
5

A.

À

Vaq
Yes.

Q.
then makes a digital file from
iUniverse then makes a dígital file from
O.
physical copy, correct?
the physical coPY, correct?
A.
That's right.
Thatts right.
A.
Q.
Where is that digital file stored?
Where is that digital file stored?
A.

8
B

a digital image file that is
That's a dì-gital image fil-e that is
stored
it would be at Ingram's
there
stored at -- it would be at Ingram's -- there was
probably a copy retained by iUniverse, but
probably a copy retained by iUni-verse, but the

9
9

production copy is held with Ingram's Lightning
production copy is held with Ingram's Lightning

6
7
7

A.
A.

10
10

Source program.
Source program.

11

Q.
O.

What security measures are put into place
What security measures are put ínto place

14
L4

to protect those digital files?
to protect those digital files?
A.
Ingram's Lightning Source program is the
Ingram's Lightning Source program is the
A.
I don't
leading industry provider of these services.
leading industry provider of these services. I don't

15
15

specifically know, but it has commercial grade
specifical-ly know, but it has commerci-al

16
16

security that I'm sure that all major publishers have
security that I'm sure that all major publishers

17
ú

found satisfactory, to my knowledge.
found satisfactory, to my

12
L2
13
13

18
1B

Q.
O.

Have The Authors Guild ever performed any
Have The Authors Guil-d ever performed any

19
79

audit of the security measures that are in place at
audit of the security measures that are in place at

20
20

Ingram?
Inqram?

21
2I
22
22
23
23
24
24

25
25

A.
A.

No.
No. But these are digital image files.
But these are digitat image fil-es.

These are not digital text files.
These are not digital text f'ì.les
Q.
a.

A digital image file can be turned into a
A digital image file can be turned into a

digital text file,
digital text file,
A.
A.

correct?
correct?

Yes; in fact, Google does that.
Yes; in fact, GoogJ-e does that.

A-293
Case 1:05-cv-08136-DC Document 1036-2

Filed 07/27/12 Page 11 of 15

Page I15
Page 175
1

2

3
4
4
5
5

6

Q.
O.
A.
A.

Through the application of
Through the appfication of

OCR?
OCR?

Right.

Q.
Have you ever
made aware of the
Have you ever been made aware of the
O.
results
any security audit performed relating to
results of any security audit performed relating to
the storage
these digital files by Ingram?
the storage of these digital files by Ingram?
A.
A.

No.
No.

MS. DURIE:
Let me have marked as the
MS. DURIE: Let me have marked as the

7
8
B

next exhibit a document titled "Authors Guild
next exhibit a document titled "Authors Guild

9
9

On-Demand Book Application."
Backinprint.com On-Demand Book AppJ-ication. "
(Aiken Exhibit B, Application form to
(Aiken Exhibit 8, Application form to

10
11
11

participate in backinprint.com program, marked for
participate in backinprint.com program, marked for

12
12

identification, as of this date.))
identificat.ion, âs of this date.

13

14
L4
15
15
16
16
17
fl
18
18

Q.
O.

Do you recognize what has been marked as
Do you recognize what has been marked

Exhibi t 8?
Exhibit
A.
A.

Yes.
This is an application form to
Yes. This is an application form to

participate in the backinprint.com program.
participate in the backinprint.com program.
Q.
O.

This is a form that was prepared by The
This is a form that was prepared by

Authors Guild, correct?
Authors Guild, correct?

19
19

A.
A.

Correct.
Correct.

20
20

Q.
O.

And The Authors Guild makes this form
And The Authors Guild makes this form

21
2L

available to its members; is that right?
available to its members; is that right?

22
22

A.
A.

That's right.
Thatts right

23
23

Q.
O.

Does it make this form available to its
Does it make this form available to its

24
24
25
25

members on its Web site?
members on its Web site?
A.
A.

II believe so, but I'm not sure.
believe sor but Irm not sure.

A-294
Case 1:05-cv-08136-DC Document 1036-2

Filed 07/27/12 Page 12 of 15

Page I1 6
Page 176
1

Q.
O.

Does The Authors Guild make
Does The Authors Guil-d make any

2
2

recommendations to its members regarding whether some
its members regarding whether some
recommendations

3
3

a work should be brows able in order to
portion of a work should be browsable in order to

4
4

facilitate safes of the work?
facilitate sales of the

5

6
6
7
8
I

A.
A.

We do so in this application form I
Ilrle do so in this application form I

believe somewhere.
bel-ieve somewhere.
Q.
O.

What recommendation does The
What recommendation does The Authors

Guild make to its members in that regard?
Guil-d make to its members in that

9
9

A.
A.

I believe
I bel-ieve

10

Q.
O.

And if it helps,
And if it helps,

11
11
12
L2

No. 9 at the bottom.
No. 9 at the
A.
A.

15

Thank you.
Thank
Yes.
We recom.mend that authors make the
Yes. We recommend that authors make the

13
14
14

I can direct you to page
I can direct you to

first chapter of their book available.
first chapter of their book availabÌe.
Q.
O.

So The Authors Guild recommends to
So The Authors Guild recommends to

16
16

authors to make the first chapter of the author's
authors to make the first chapter of the author's

17
ú

book available for browsing online; is that correct?
book availabl-e for browsing online; is that correct?

18
1B

A.
A.

Yes, in conjunction with the Back In
Yes, in conlunction with the Back In

19
L9

Print Program.
Print Program.

20
20

Q.
O.

21
2I

recommendation?
recommendation?

22
22

A.
A.

Why does The Authors Guild make that
Why does The Authors Guild make that

Because we have been told and believe
Because we have been told and bel-ieve

23
23

that allowing a book to be browsed in this way
that al-Iowing a book to be browsed in this way

24
24

promotes the sale of the book.
promotes the sal-e of the book.

25
25

Q.
O.

How would a potential reader typically
How woul-d a potential reader typical-Iy

II
~.

r

A-295
Case 1:05-cv-08136-DC Document 1036-2

Filed 07/27/12 Page 13 of 15

Page 183
Page 183
1
1
2
3

4
4
5
5

term
these
term for these sorts of programs?
Q.
O.
A.
A.

Correct.

Yes.
there would be
I
Yes. I believe there would be -- I
believe there would have to be a conversion to
believe there would have to be a conversion to
digital text, something that hadn't occurred to
digital- text, something that hadn't occurred to

me

8
I

until
noticed
it appeared in the last few
until I noticed that it appeared in the l-ast few days
Back
books were not available in
did
that Back In Print books \^/ere not available in -- did
not seem to be availabl-e in Search Inside the
not seem to be available in Search Inside the Book

9
9

programs.

6
6
7
7

10

Q.
O.

Do you know whether an author who is
Do you know whether an author who l-s

11
11

making his work available through Back In Print can
making his work availabÌe through Back In Print

12
12

pay an additional $75 to iUniverse in order to have a
pay an additional $75 to iUnj-verse in order to have

13
13

digital text file created and included within the
digital text file created and incl-uded within the

14
14

Barnes & Noble See Inside the Book feature?
Barnes Noble See Inside the Book feature?

15
16
16
17
L]
18
18

A.
A.

The only knowledge about that is what has
The only knowledge about that is what

been presented to me today.
been presented to me
Q.
O.

Is that likewise true with respect to the
Is that likewise true with respect to the

Amazon See Inside the Book feature?
Amazon See Inside the Book feature?

19
19

A.
A.

Yes.

20

Q.
O.

NOW, with respect to the Amazon Search
Now, with respect to the Amazon Search

21
2I

Inside the Book feature, authors do not receive any
Inside the Book feature, authors do not recei-ve any

22
22

compensation when portions of their book are shown in
compensation when portions of their book are shown in

23
23

response to search requests, correct?
response to search requests, correct?

24
z4

25
25

A.
A.

We're talking about the -- are we talking
are we tal-king
We're talking about the

generally in the Amazon program or are we talking
generally in the Amazon program or are we talking

A-296
Case 1:05-cv-08136-DC Document 1036-2

Filed 07/27/12 Page 14 of 15

Page I84
Page 184
1
1

about the iUniverse Back In Print Program?
about the iUniverse Back In Print Program?

Q.
O.

3
3
4
4

5
5
6
6
7
1

8
I
9
9

Generally, Amazon s Search Inside
Generally, Amazon's Search Inside the

A.
A.

2

Yes.
Yes .

1

Book.
Book.
My understanding is
no. Authors
My understanding is -- no. Aut-hors

generally do not receive compensation for their books
generally do not receive compensation for their books
being shown
Search Inside the Book with Amazon.
being shown in Search Inside the Book with Amazon.
Q.
And authors likewise do not typically
And authors Ìikewise do not typically
Q.
give specific permission for their works to be
give specific permissíon for their works to be shown
in the Amazon Search Inside the Book program but
in the Amazon Search Inside the Book program but

12
12

publishers do;
publishers do; is that correct?
that correct?
A.
Typically, authors have in their
Typically, authors have in their
A.
contracts with their publishers a clause allowing the
contracts with their publishers a cfause allowing the

13
13

publisher to prevent portions of the text to be used
publisher to prevent portions of the text to be

14
14

to promote sales of the book.
to promote sal-es of the

10
10
11
11

15
15

So the author licenses or includes that
So the author l-icenses or includes that

16
76

right in the license to the publisher, and then the
right in the license to the publisher, and then the

17
fl

publisher authorizes in some cases Amazon, Google,t or
pubtisher authorizes in some cases Amazon, Google or

18
18

Barnes & Noble to make displays.
Barnes Nobl-e to make dispJ-ays.

19
t9
20
20
21
27

Q.
O.

Inside the Book program?
Inside the Book Program?
A.
A.

22
pubJ-ishers.
22_ publishers.
23
ZJ

Can authors opt out of the Amazon Search
Can authors opt out of the Amazon Search

Q.
A.

I believe they can through their
I believe they can through their
_

Has The Authors Guild made any
Has The Authors Guild made anY

24
24

recommendations to its members about whether to opt
recofltmendations to its members about whether to opt

25
25

out of the Amazon Search Inside the Book program?
out of the Amazon Search Inside the Book program?

A-297
Case 1:05-cv-08136-DC Document 1036-2

Filed 07/27/12 Page 15 of 15

Page 186
Page 186

2
2

used, over books not in the program.
Those figures
used, over books not in the program. Those figures
from Amazon should be taken with a grain of salt
from Amazon shoutd be taken with a grain of sal-t

3
3

because Amazon plays its
very close to the
because Amazon plays its cards very cl-ose to the

4
4

would never provide information on the
past. They would never provide information on the
types of books and how sales might be affected.
types of books and how safes might be affected.
Publishers have also told me that it
Publishers have also told me that it

1
1

5
5

6
6
7
1
8
B

increases sales,
often been skeptical
increases sales, but they've often been skeptical
about how much and whether or not those figures are
about how much and whether or not those figures are

11

in any way artificially affected by Amazon in
affected by Amazon in
in any way artificially
changing its search
within Amazon based
changing its search results within Amazon based on
whether or not it's in the Search Inside the Book
whether or not it's in the Search Inside the

12
I2

program.
program. I don't know one way or another what may be
I don't know one way or another what may

13

done behind the scenes.
done behind the

9
9
10

14
L4

Q.
O.

Do you think it's more likely than not
Do you think it's more likely than not

15
15

that Search Inside the Book on average has a net
that Search Inside the Book on average has a net

16
L6

positive effect on sales?
positive effect on sal-es?

17
I1

A.
A.

Yes.
Yes.

18
18

Q.
O.

Would you agree that Search Inside the
WouJ-d you agree that Search Inside the

19
19

Book has created a browsable bookstore?
Book has created a browsable bookstore?
MR. BONI: Object to form.
MR. BONI: Object to form.

20
20
21
2L

A.
A.

MR. BONI:
You can answer.
MR. BONI: You can answer.

22
22
23
za
24
24
25
25

No.
No.

A.
A.

No.
No.
MS. DURIE:
Let me have marked as the
MS. DURIE: Let me have marked as the

next exhibit a mUltipage document, the first page of
next exhibit a multipage document, the first page of

A-298
Case 1:05-cv-08136-DC Document 1036-3

Filed 07/27/12 Page 1 of 12

EXHIBIT 3

A-299
Case 1:05-cv-08136-DC Document 1036-3

Filed 07/27/12 Page 2 of 12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
The Authors Guild, et al.
Plaintiffs,

Master File No. NO. 05 CV 8136-DC

v.
Google Inc.,
Defendant.

PLAINTIFFS' RESPONSES AND OBJECTIONS TO
DEFENDANT GOOGLE INC.'S FIRST SET OF INTERROGATORIES TO
PLAINTIFFS THE AUTHORS GUILD, INC., JIM BOUTON, JOSEPH GOULDEN AND
BETTY MILES
Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, Plaintiffs hereby
respond and object to Defendant Google Inc.'s First Set of Interrogatories to Plaintiffs The
Authors Guild, Inc., Jim Bouton, Joseph Goulden and Betty Miles.

General Objections
1.

Plaintiffs generally object to the Interrogatories and their instructions to the extent

that they seek information not discoverable under, or impose procedures not required by, the
Federal Rules of Civil Procedure or the Local Rules of the Southern District of New York.
2.

Plaintiffs generally object to the Interrogatories to the extent that they seek the

disclosure of information protected by the attorney-client privilege, the attorney work product
doctrine and/or any other applicable privilege or protection. Responses hereunder shall not
include information protected by such privileges or doctrines.
3.

Plaintiffs generally object to the Interrogatories to the extent they seek

information that may be ascertained by Google Inc. with substantially the same burden as
plaintiffs.

A-300
Case 1:05-cv-08136-DC Document 1036-3

4.

Filed 07/27/12 Page 3 of 12

Plaintiffs object to the Interrogatories on the ground that the tenn "YOUR

BOOKS," used throughout the Interrogatories, is not defined.
5.

Plaintiffs reserve the right to supplement andlor amend the specific responses set

forth below, and to rely on additional facts and law.

RESPONSES
INTERROGATORY 1:
Identify all factual and legal bases supporting Your contention that Google's Library
Project is not fair use.

Response:
In addition to the General Objections, plaintiffs object to this Interrogatory on the
grounds that the word "aU" is overbroad and unduly burdensome in this context. Without
waiving these objections, plaintiffs respond as follows:
A.

Google's Library Project involves the following infringements of copyright:

(1)

Google digitally copies, and converts into separate, machine readable
digital text copies, in-copyright books in their entirety for its own uses
without the pennission of the copyright owners in violation of 17 U.S.C. §
106(1);

(2)

Google distributes digital copies of in-copyright books in their entirety to
libraries without the pennission of the copyright owners in violation of 17
U.S.C. § 106(3);

(3)

Google publicly displays verbatim expression from in-copyright books on
the Internet in response to requests by users of its website without the
permission of the copyright owners in violation of 17 U.S.C. § 106(5).

B.

The above infringements are not protected by the fair use doctrine of 17 U .S.C.

§ 107:

2