The Authors Guild v. Google, Inc.

Filing 43

JOINT APPENDIX, volume 3 of 6, (pp. 601-900), on behalf of Appellant Jim Bouton, Joseph Goulden, Betty Miles and The Authors Guild, FILED. Service date 04/07/2014 by CM/ECF.[1196256] [13-4829]

13-4829-cv
United States Court of Appeals
for the

Second Circuit
THE AUTHORS GUILD, BETTY MILES, JIM BOUTON, JOSEPH
GOULDEN, individually and on behalf of all others similarly situated,
Plaintiffs-Appellants,
HERBERT MITGANG, DANIEL HOFFMAN, individually and on behalf of all
others similarly situated, PAUL DICKSON, THE MCGRAW-HILL
COMPANIES, INC., PEARSON EDUCATION, INC., SIMON & SCHUSTER,
INC., ASSOCIATION OF AMERICAN PUBLISHERS, INC., CANADIAN
STANDARD ASSOCIATION, JOHN WILEY & SONS, INC., individually and
on behalf of all others similarly situated,
Plaintiffs,
v.
GOOGLE, INC.,
Defendant-Appellee.
––––––––––––––––––––––––––––––
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

JOINT APPENDIX
(UN-SEALED REDACTED VERSION)
Volume 3 of 6 (Pages A-601 to A-900)
DURIE TANGRI
217 Leidesdorff Street
San Francisco, California 94111
[phone]
– and –
WILMER CUTLER PICKERING HALE
AND DORR LLP
1875 Pennsylvania Avenue, NW
Washington, DC 20006
[phone]
Attorneys for Defendant-Appellee

FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
[phone]
– and –
JENNER & BLOCK
1099 New York Avenue, NW, Suite 900
Washington, DC 20001
[phone]
Attorneys for Plaintiffs-Appellants

i
TABLE OF CONTENTS
Page
District Court Docket Entries ....................................

A-1

Excerpts from the Objection of Amazon.com, Inc.
to Proposed Settlement, dated September 1, 2009

A-53

Excerpts from the Objections of Microsoft
Corporation to Proposed Settlement and
Certification of Proposed Settlement Class and
Sub-Classes, dated September 8, 2009 ..................

A-65

Excerpts from the Memorandum of Amicus Curiae
Open Book Alliance in Opposition to the
Proposed Settlement, filed September 8, 2009 ......

A-78

Excerpts from the Objection of Yahoo!Inc. to Final
Approval of the Proposed Class Action
Settlement, filed September 8, 2009 ......................

A-80

Declaration of Michael J. Boni in Support of
Motion to Approve the Amended Settlement
Agreement, dated November 13, 2009
(Omitted herein)
Exhibit 2 to Boni Declaration –
Amended Settlement Agreement, dated
November 13, 2009 ...............................................

A-83

Opinion of the Honorable Denny Chin, dated
March 22, 2011 ......................................................

A-127

Fourth Amended Class Action Complaint, dated
October 14, 2011....................................................

A-175

Defendant Google Inc.’s Answer to Plaintiffs’
Fourth Amended Complaint, dated June 14, 2012

A-191

ii
Page
Declaration of Judith A. Chevalier in Support of
Defendant Google Inc.’s Motion for Summary
Judgment, dated July 18, 2012 ..............................

A-201

Exhibit A to Chevalier Declaration –
Expert Report of Judith A. Chevalier, dated
May 4, 2012 ...........................................................

A-203

Declaration of Dan Clancy in Support of Defendant
Google Inc.’s Motion for Summary Judgment,
dated July 26, 2012 ................................................

A-222

Exhibit A to Clancy Declaration –
Cooperative Agreement between Google Inc. and
Regents of the University of Michigan/University
Library, dated June 15, 2005..................................

A-228

Exhibit B to Clancy Declaration –
Search Results Page for the Query “Steve
Hovley” ..................................................................

A-241

Exhibit C to Clancy Declaration –
Portion of an About the Book Page that is
Displayed when one clicks on Ball Four in the
Search Results Pictured in Exhibit B .....................

A-243

Exhibit D to Clancy Declaration –
Portion of the About the Book Page Depicted in
Exhibit C Showing the Snippets Displayed ...........

A-245

Exhibit E to Clancy Declaration –
Excerpt from a Search Page for Black’s Law
Dictionary ..............................................................

A-247

Exhibit F to Clancy Declaration –
Page Showing Foul Ball in Partner Program
Preview ..................................................................

A-249

iii
Page
Exhibit G to Clancy Declaration –
Webpage at http://books.google.com/
googlebooks/testimonials.html Reflecting User
Comments on Google Books .................................

A-251

Exhibit H to Clancy Declaration –
Quantitative Analysis of Culture Using Millions
of Digitized Books by Jean-Baptiste Michel .........

A-259

Declaration of Joseph C. Gratz in Support of
Defendant Google Inc.’s Motion for Summary
Judgment, dated July 27, 2012 ..............................

A-267

Exhibit 1 to Gratz Declaration –
Excerpts of Deposition Transcript of Paul N.
Courant, dated April 23, 2012................................

A-270

Exhibit 2 to Gratz Declaration –
Excerpts of Deposition Transcript of Paul Aiken,
dated April 19, 2012 ..............................................

A-283

Exhibit 3 to Gratz Declaration –
Excerpts of Plaintiffs’ Responses and Objections
to Defendant Google Inc.’s First Set of
Interrogatories, dated April 27, 2012 .....................

A-298

Exhibit 4 to Gratz Declaration –
Excerpts of Deposition Transcript of Judith A.
Chevalier, dated June 8, 2012 ................................

A-307

Exhibit 5 to Gratz Declaration –
Letter from Pamela Samuelson to the Honorable
Denny Chin, dated February 13, 2012 ...................

A-310

Exhibit 6 to Gratz Declaration –
Excerpts of Deposition Transcript of Eric Zohn,
dated April 13, 2012 ..............................................

A-316

iv
Page
Exhibit 7 to Gratz Declaration –
Exhibit 2 to the Deposition Transcript of Eric
Zohn .......................................................................

A-322

Declaration of Albert N. Greco in Support of
Defendant Google Inc.’s Motion for Summary
Judgment, dated July 23, 2012 ..............................

A-325

Exhibit A to Greco Declaration –
Expert Report of Albert N. Greco, dated
May 3, 2012 ...........................................................

A-327

Declaration of Kurt Groetsch in Support of
Defendant Google Inc.’s Motion for Summary
Judgment, dated July 25, 2012 ..............................

A-335

Declaration of Bruce S. Harris in Support of
Defendant Google Inc.’s Motion for Summary
Judgment, dated July 23, 2012 ..............................

A-340

Exhibit A to Harris Declaration –
Expert Report of Bruce S. Harris, dated
May 3, 2012, with Exhibits D-H ...........................

A-342

Declaration of Brad Hasegawain in Support of
Defendant Google Inc.’s Motion for Summary
Judgment, dated July 25, 2012 ..............................

A-392

Declaration of Stephane Jaskiewicz in Support of
Defendant Google Inc.’s Motion for Summary
Judgment, dated July 25, 2012 ..............................

A-395

Declaration of Gloriana St. Clair in Support of
Defendant Google Inc.’s Motion for Summary
Judgment, dated July 18, 2012 ..............................

A-398

Exhibit A to St. Clair Declaration –
Expert Report of Gloriana St. Clair, dated
May 3, 2012 ...........................................................

A-400

v
Page
Local Rule 56.1 Statement in Support of Defendant
Google Inc.’s Motion for Summary Judgment,
dated July 27, 2012 ................................................

A-417

Declaration of Joanne Zack in Support of Plaintiffs’
Motion for Partial Summary Judgment, dated
July 26, 2012 ..........................................................

A-429

Exhibit 1 to Zack Declaration –
U.S. Copyright Office Certificate of Registration
No. A173097 ..........................................................

A-435

Exhibit 2 to Zack Declaration –
U.S. Copyright Office Certificate of Registration
No. TX0000338841 ...............................................

A-438

Exhibit 3 to Zack Declaration –
U.S. Copyright Office Certificate of Registration
No. A346254 ..........................................................

A-441

Exhibit 4 to Zack Declaration –
Printouts from Google’s Website displaying
Search Results in Jim Bouton, Ball Four ..............

A-444

Exhibit 5 to Zack Declaration –
Printouts from Google’s Website displaying
Search Results for the Term “pitch” in Jim
Bouton, Ball Four ..................................................

A-510

Exhibit 6 to Zack Declaration –
Printouts from Google’s Website displaying
Search Results for the Term “pitches” in Jim
Bouton, Ball Four ..................................................

A-516

Exhibit 7 to Zack Declaration –
Printouts from Google’s Website displaying
Search Results in Betty Miles, The Trouble with
Thirteen ..................................................................

A-522

vi
Page
Exhibit 8 to Zack Declaration –
Printouts from Google’s Website displaying
Search Results in Joseph Goulden, The
Superlawyers: the Small and Powerful World of
the Great Washington Law Firms ..........................

A-532

Exhibit 9 to Zack Declaration –
Excerpts from a Spreadsheet produced by Google
identifying approximately 2.7 million scanned
Books Google has distributed to Libraries ............

A-542

Exhibit 10 to Zack Declaration –
Printout from http://www.authorsguild.org/about/
history. html ...........................................................

A-546

Exhibit 11 to Zack Declaration –
Printout from http://investor.google.com/
corporate/faq.html ..................................................

A-549

Exhibit 12 to Zack Declaration –
“Google Checks Out Library Books,” dated
December 14, 2004 ................................................

A-555

Exhibit 13 to Zack Declaration –
Pages 1, 2, 15, and 56 of Google Inc.’s 2011
Form 10-K .............................................................

A-559

Exhibit 14 to Zack Declaration –
Pages 1, 3, and 50 of Google Inc.’s 2010 Form
10-K .......................................................................

A-564

Exhibit 15 to Zack Declaration –
Google Print Partner Development: Global Sales
Conference
(Filed Under Seal. Reproduced in the
Confidential Appendix at pp. CA-1-CA-16) .........

A-568

vii
Page
Exhibit 16 to Zack Declaration –
Deposition Transcript of Daniel Clancy
(Filed Under Seal. Reproduced in the
Confidential Appendix at pp. CA-17-CA-83) .......

A-569

Exhibit 17 to Zack Declaration –
Google Book Partner Program Standard Terms
and Conditions .......................................................

A-570

Exhibit 18 to Zack Declaration –
Deposition Transcript of Thomas Turvey
(Filed Under Seal. Reproduced in the
Confidential Appendix at pp. CA-84-CA-115)......

A-579

Exhibit 19 to Zack Declaration –
Printout from http://support.google.com/
books/bin/answer.py?hl=en&answer=43729I .......

A-580

Exhibit 20 to Zack Declaration –
Announcement from Google, “Committee on
Institutional Cooperation (CIC) Joins Google’s
Library Project,” dated June 6, 2007 .....................

A-582

Exhibit 21 to Zack Declaration –
Declaration of Daniel Clancy in Support of
Google Inc.’s Opposition to Plaintiffs’ Motion for
Class Certification, filed February 8, 2012 ............

A-586

Exhibit 22 to Zack Declaration –
Printout from http://support.google.com/
books/bin/answer.py?hl=en&answer=43751. ........

A-591

Exhibit 23 to Zack Declaration –
Compilation of Documents produced by Google
(Portions of Exhibit 23 Filed Under Seal.
Reproduced in the Confidential Appendix
at pp. CA-116-CA-308) .........................................

A-593

viii
Page
Exhibit 24 to Zack Declaration –
Deposition Transcript of Kurt Groetsch
(Filed Under Seal. Reproduced in the
Confidential Appendix at pp. CA-309-CA-340) ...

A-685

Exhibit 25 to Zack Declaration –
Deposition Transcript of Stephane Jaskiewicz
(Filed Under Seal. Reproduced in the
Confidential Appendix at pp. CA-341-CA-372) ...

A-686

Exhibit 26 to Zack Declaration –
Defendant Google Inc.’s Supplemental Narrative
Responses and Objections to Plaintiffs’ Second
Request for Production of Documents and Things
(Filed Under Seal. Reproduced in the
Confidential Appendix at pp. CA-373-CA-388) ...

A-687

Exhibit 27 to Zack Declaration –
Excerpts from the Defendant Google Inc.’s
Responses and Objections to Plaintiffs’ First Set
of Requests for Admission .....................................

A-688

Exhibit 28 to Zack Declaration –
Printout from http://www.google.com/
googlebooks/library.html .......................................

A-705

Exhibit 29 to Zack Declaration –
QA Training Manual
(Filed Under Seal. Reproduced in the
Confidential Appendix at pp. CA-389-CA-407) ...

A-707

Exhibit 30 to Zack Declaration –
Excerpts from a Spreadsheet produced by Google

A-708

ix
Page
Exhibit 31 to Zack Declaration –
E-mail from Joseph Gratz to Joanne Zack, dated
December 9, 2011
(Filed Under Seal. Reproduced in the
Confidential Appendix at pp. CA-408-CA-409) ...

A-712

Exhibit 32 to Zack Declaration –
Library of Congress Trip Report
(Filed Under Seal. Reproduced in the
Confidential Appendix at pp. CA-410-CA-422) ...

A-713

Exhibit 33 to Zack Declaration –
Deposition Transcript of Paul Courant
(Redacted Version. Unredacted Version
Reproduced in the Confidential Appendix at pp.
CA-423-CA-437) ...................................................

A-714

Exhibit 34 to Zack Declaration –
“Google Print Full Text Book Mini-GPS,” dated
December 10, 2003
(Filed Under Seal. Reproduced in the
Confidential Appendix at pp. CA-438-CA-454) ...

A-748

Exhibit 35 to Zack Declaration –
“Google Print: A Book Discovery Program,”
dated October 15, 2004
(Filed Under Seal. Reproduced in the
Confidential Appendix at pp. CA-455-CA-478) ...

A-749

Exhibit 36 to Zack Declaration –
Deposition Transcript of Gloriana St. Clair ...........

A-750

Exhibit 37 to Zack Declaration –
Expert Report of Daniel Gervais ...........................

A-782

x
Page
Exhibit 38 to Zack Declaration –
Deposition Transcript of James Crawford
(Filed Under Seal. Reproduced in the
Confidential Appendix at pp. CA-479-CA-497) ...

A-797

Exhibit 39 to Zack Declaration –
Expert Report of Benjamin Edelman .....................

A-798

Exhibit 40 to Zack Declaration –
Deposition Transcript of Bruce Harris ...................

A-808

Exhibit 41 to Zack Declaration –
Deposition Transcript of Albert Greco ..................

A-825

Exhibit 42 to Zack Declaration –
Deposition Transcript of Judith Chevalier
(Redacted Version. Confidential Pages
Reproduced in the Confidential Appendix at
pp. CA-498-CA-501) .............................................

A-852

Exhibit 43 to Zack Declaration –
Defendant Google Inc.’s Responses and
Objections to Plaintiffs’ First Set of
Interrogatories ........................................................

A-909

Plaintiffs’ Statement of Undisputed Facts in Support
of Their Motion for Partial Summary Judgment,
dated July 26, 2012
(Public Redacted Version. Confidential Pages
Reproduced in the Confidential Appendix at
pp. CA-502-CA-508) .............................................

A-927

Plaintiffs’ Response to Defendant Google Inc.’s
Local Rule 56.1 Statement, dated
August 26, 2013
(Public Redacted Version. Confidential Pages
Reproduced in the Confidential Appendix at
pp. CA-509-CA-516) .............................................

A-949

xi
Page
Declaration of Michael J. Boni in Support of
Plaintiffs’ Opposition to Defendant Google’s
Motion for Summary Judgment, dated
August 26, 2013 .....................................................

A-979

Exhibit 1 to Boni Declaration –
Compilation of Google Snippet Displays from
Jim Bouton’s Baseball Memoir Ball Four .............

A-982

Exhibit 2 to Boni Declaration –
Google Snippet Displays from Joseph Goulden’s
History Superlawyers............................................. A-1074
Exhibit 3 to Boni Declaration –
Google Snippet Displays from Betty Miles’s
Novel The Trouble with Thirteen ........................... A-1172
Exhibit 4 to Boni Declaration –
Internal Memos produced by Google to The
American Society of Media Photographers, Inc.
(Filed Under Seal. Reproduced in the
Confidential Appendix at pp. CA-517-CA-521) ... A-1204
Exhibit 5 to Boni Declaration –
Cover, Table of Contents, and Complete Chapter
Two with Answer Key for The Seinfeld Aptitude
Test by Beth Golub (Carol Publishing Group,
1994) ...................................................................... A-1205
Exhibit 6 to Boni Declaration –
Cover, Table of Contents, and First Three Pages
of each Chapter from Welcome to Twin Peaks
(1990 Publications International Ltd.) ................... A-1244

xii
Page
Exhibit 7 to Boni Declaration –
Excerpts from the Deposition of Bradley
Hasegawa
(Filed Under Seal. Reproduced in the
Confidential Appendix at pp. CA-522-CA-538) ... A-1271
Exhibit 8 to Boni Declaration –
Printout from a Webpage on Amazon.com,
obtained by clicking on the “Amazon” Link on
the Google Books Page for Joseph Goulden’s
book Superlawyers................................................. A-1272
Exhibit 9 to Boni Declaration –
Printout from a Webpage on Amazon.com,
obtained by running a Search on Amazon.com for
“Steve Hovley” ...................................................... A-1277
Exhibit 10 to Boni Declaration –
Printout from a Webpage on Amazon.com,
obtained by running a Search on Amazon.com for
“Minoru Yasui” ...................................................... A-1287
Declaration of Paul Aiken in Support of Plaintiffs’
Opposition to Defendant Google’s Motion for
Summary Judgment, dated August 26, 2013 ......... A-1290
Attachment A to Aiken Declaration –
Amazon Press Release: “Amazon.com Launches
“Search Inside the Book” Enabling Customers to
Discover Books by Searching and Previewing the
Text Inside” ............................................................ A-1302
Attachment B to Aiken Declaration –
“The Great Library of Amazonia,” Wired
Magazine, November 12, 2003 .............................. A-1305

xiii
Page
Attachment C to Aiken Declaration –
“News: A9, Amazon’s Search Portal, Goes Live:
Reverberations Felt in Valley,” John Battelle’s
Search Blog, April 14, 2004................................... A-1314
Attachment D to Aiken Declaration –
“Can Amazon Unplug Google?” Business 2.0,
April 15, 2004 ........................................................ A-1319
Attachment E to Aiken Declaration –
“Amazon to Take Searches on Web to a New
Depth,” The New York Times,
September 15, 2004 ............................................... A-1325
Attachment F to Aiken Declaration –
“Amazon’s A9 Launches Visual Yellow Pages,”
Search Engine Watch, January 26, 2005 ................ A-1329
Attachment G to Aiken Declaration –
“Google Hires Amazon Search Chief,” Seattle
Post-Intelligencer, February 7, 2006 ..................... A-1333
Attachment H to Aiken Declaration –
“Google Announces New Mapping Innovations
at Where 2.0 Conference,” News from Google,
May 29, 2007 ......................................................... A-1337
Declaration of Joseph C. Gratz in Opposition to
Plaintiffs’ Motion for Partial Summary Judgment,
dated August 26, 2013 ........................................... A-1340
Exhibit 1 to Gratz Declaration –
Portion of the Web Page resulting from a Search
on the Library of Congress Catalog at
http://catalog.loc.gov for the Query “500 Pearl
Street” .................................................................... A-1344

xiv
Page
Exhibit 2 to Gratz Declaration –
Portion of the Web Page resulting from a Search
on https://books.google.com for the Query “500
Pearl Street” ........................................................... A-1346
Exhibit 3 to Gratz Declaration –
Portion of the Web Page that results from
clicking on the Result Alas! What Brought Thee
Hither?: The Chinese in New York, 1800-1950 in
Exhibit 2................................................................. A-1348
Exhibit 4 to Gratz Declaration –
Portion of the Web Page resulting from a Search
on https://books.google.com for the Query “Hong
Kee Kang” ............................................................. A-1350
Exhibit 5 to Gratz Declaration –
Portion of the Web Page that results from
clicking on the Result Chinese America, History
and Perspectives in Exhibit 4 ................................ A-1352
Exhibit 6 to Gratz Declaration –
Printout from http://www.amazon.com/gp/offerlisting/B002H9DITW ............................................ A-1354
Exhibit 7 to Gratz Declaration –
Marc Egnal, Evolution of the Novel in the United
States: The Statistical Evidence, 37:2 Soc. Sci.
Hist. 231 (2013) ..................................................... A-1356
Exhibit 8 to Gratz Declaration –
Written Testimony submitted by Paul Aiken to
the Committee on the Judiciary of the United
States House of Representatives in connection
with a September 10, 2009 Hearing titled
“Competition and Commerce in Digital Books” ... A-1381

xv
Page
Exhibit 9 to Gratz Declaration –
Excerpts of the Deposition Transcript of Paul
Aiken...................................................................... A-1412
Exhibit 10 to Gratz Declaration –
Excerpts of the Deposition Transcript of Betty
Miles ...................................................................... A-1419
Exhibit 11 to Gratz Declaration –
Excerpts of Plaintiffs’ Reponses 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.................. A-1425
Exhibit 12 to Gratz Declaration –
Excerpts of the Deposition Transcript of Jim
Bouton.................................................................... A-1432
Exhibit 13 to Gratz Declaration –
Excerpts of the Deposition Transcript of Joseph
Goulden.................................................................. A-1435
Exhibit 14 to Gratz Declaration –
Exhibit 6 to the Deposition of Paul Aiken ............. A-1445
Exhibit 15 to Gratz Declaration –
Deposition Transcript of Daniel Gervais ............... A-1448
Exhibit 16 to Gratz Declaration –
Deposition Transcript of Benjamin G. Edelman .... A-1509
Exhibit 17 to Gratz Declaration –
Exhibit 5 to the Deposition of Jim Bouton ............ A-1588
Exhibit 18 to Gratz Declaration –
Exhibit 2 to the Deposition of Betty Miles ............ A-1590

xvi
Page
Exhibit 19 to Gratz Declaration –
Exhibit 16 to the Deposition of Benjamin G.
Edelman ................................................................. A-1592
Exhibit 20 to Gratz Declaration –
Excerpts of the Deposition Transcript of Judith A.
Chevalier ................................................................ A-1595
Declaration of Scott Dougall in Opposition to
Plaintiffs’ Motion for Partial Summary Judgment,
dated August 22, 2013 ........................................... A-1602
Google Inc.’s Responses and Objections to
Plaintiffs’ Statement of Undisputed Facts in
Support of Their Motion for Partial Summary
Judgment, dated August 26, 2013
(Public Redacted Version. Confidential Pages
Reproduced in the Confidential Appendix at
pp. CA-539-CA-555) ............................................. A-1605
Notice of Appeal, dated December 23, 2013 ............. A-1639

A-601
Case 1:05-cv-08136-DC Document 1053-2

Filed 08/03/12 Page 9 of 51

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CONFIDENTIAL

8

GOOG05000362

A-602
Case 1:05-cv-08136-DC Document 1053-2

Filed 08/03/12 Page 10 of 51

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receipt acknowledgement) or three (3) days after deposit with postal authorities. Unless otherwise
specified by Google, notices directed to Google shall be sent to Google Inc., Attn: General Counsel, 2400
8ayshore Pkwy, Mountain View, CA 94043, or via facsimile to Google Inc., Attn: General Counsel, 650618-1499. Unless otherwise specified by U of M, notices directed to U of M shall be sent to University
Library, Attn: Associate University Librarian LIT, University of Michigan, Ann Arbor, MI 48109-1205.
Independent Contractors. The Parties to this Agreement are independent Parties and
12.4
nothing herein shall be construed as creating an employment, agency, joint venture or partnership
relationship between the Parties. Neither Party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability, or to otherwise bind, the other Party.
12.5
Severability. If any term or provision of this Agreement is held to be invalid, illegal, or
otherwise void against public policy, such term or provision shall be stricken and shall not affect the
validity or enforceability of the remaining terms and provisions of this Agreement.
12.6
Force Majeure. Perfonmance by either party under this Agreement shall be excused
during the period such performance is prevented or delayed by government restrictions, war or warlike
activity (e.g., ads of terrorism), insurrection or civil disorder, labor disputes, or any other causes similarly
or dissimilar to the foregoing that are beyond the control of either party and are not foreseeable at the
time the Agreement (or relevant amendment) is executed.
12.7
General. The Agreement shall be governed by Federal law without giving effect to
applicable conflict of laws provisions. In the event of any dispute or litigation arising out of or relating to
this Agreement, each Party agrees that it shall attempt to resolve such dispute in good faith. If such
dispute cannot be resolved within thirty days of being raised, the dispute shall be elevated to the highest
level at each Party. If the dispute still cannot be resolved within an additional thirty days, the aggrieved
party may file a lawsuit in the state or federal courts with jurisdiction to hear such suits in the State of
Michigan. This Agreement, including any Project Forms and attached Exhibits, constitutes the entire
understanding and agreement with respect to its subject matter, and supersedes any and all prior or
contemporaneous representations, understandings and agreements whether oral or written between the
Parties relating to the subject matter of this Agreement, all of which are merged in this Agreement. For
avoidance of doubt, as of the Effective Date, this Agreement supersedes and replaces any other
Cooperative Agreements between the parties to the extent they exist. No modification of or amendment
to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing
signed by the Party to be charged, and the waiver of any breach or default will not constitute a waiver of
any other right hereunder or any subsequent breach or default. All amendments or modifications of this

CONFIDENTIAL

9

GOOG05000363

A-603
Case 1:05-cv-08136-DC Document 1053-2

Filed 08/03/12 Page 11 of 51

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

CONFIDENTIAL

10

GOOG05000364

A-604
Case 1:05-cv-08136-DC Document 1053-2

Filed 08/03/12 Page 12 of 51

Accepted and Agreed:

::jj~ t,/(t(~)' BY:~~

On behalf of the Regents of the University of
Michigan

(Authorized signature)

6/rJ/or

(Authorized signature)

Name: David Drummond

Name: Timothy Sioitow

Title: V.P.! Corporate Development

Title: Executive Vice President and
Chief Financial Officer

CONFIDENTIAL

11

GOOG05000365

A-605
Case 1:05-cv-08136-DC Document 1053-2

Filed 08/03/12 Page 13 of 51

EXHIBIT A

SAMPLE PROJECT FORM

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

Other comments:

CONFIDENTIAL

12

GOOG05000366

A-606
Case 1:05-cv-08136-DC Document 1053-2

Filed 08/03/12 Page 14 of 51

CDDPERATIVE AGREEMENT

»b.m:..§Q!X\~n.n 15 entered into by "me iJetviecn Googie lnc., a
at 1600 Amphitheatre Pmkway, Mountain Vis'w. California 94(J43
CGg:.;m!!f}. a,,(1 Tht) Re~1<"nts.. of the Unjwvsity of Ceiifomia on behalf of its CaEforni£,. Digital Uhrary w;ih
its princlpt,,: offices at 4'j5 20'( S\reet, 4')' Floor, Oaklar;d California, 94612 f'Uni\:1i'1§ity',} aflQ is efiadive
m; of the last tlaiB lhi$ ,t..P·CStTle0t is signed by the pmiies (the "Effective Dat~"), Googie and University
l:ere:n are ~;Qmet!:"es referre<:l to hereinafter indrvidwdly as ~; "Party" and c()Hedlv~~Iy as the ".P.flXti~1?".

This COOPERATjVE /l,GREEMENT (the

D""law8re corporation ',Nith

,}ff~ces

RECITALS

VVHT:":REAS. i.Jnhl:ersity Ls a ~ead;ng academic inst"ittJtion and has amassed an e:-10r:YK3US
\Morks in v.c::rk)us Hledia i"ocated at \/ar~ous Un~vers1ty L~braries;
VVHEREAS,

(,oogi~

provides tM plibHc with

6G~eSS

r.:o~~"Oction

of

10 web pages on tt)(3 htemet, among nltler products

and serv'ices;

vVHEREi\S, Google an{;
pubHc~ and

t"lE: University share a mutual interest in making

information available to the

\NHEREAS, Subjed to the terms set forth herein, GoogJe will digitize works from the UnlvGfsJy Ubrarlces'
wHecr;on (0 im:iude th2m in GOGgle's services, and provide access to ire digitized works tn the UnivorsHy
<;IS

d~1SGnt)ed

ilereb.

NOW THERE.FORE, in considemHon of ,he rnuL.lal covenants sec fu,th herein, (";oogle and University
h~3reby 8f~ree

as 70110v-t5:

DEFINITIONS
1,

DEFINITlONS, Capit2.lized terms ,"lin have ttle meanings set forth Q(l'OW:

"t<vaiiab:f:i....G..Qnt~1r mear,s selections from the University Ubmm3s' holding~.; as ldentified
Without Hmiting the for~£oing, "Available Content" aiso inCludes the
Libmrie~;' Digital Content.

; .1

by Googie <mo the University.
Un~verslIy

"];312no featl.lH%" means the trade names. tr'adernarks, service ITWks, logos. domair:
1.2
names, and other <li~;lhcl;v(l brar:ci foatures of each Party, respectively, as secured by Sliel'! F)",rty from

tim{) to time.

i.a
"OigiiL::::e rneans 10 convert CO~ltent from a tal1gn)~e~ anEdcg rorrn fnt{} a digita1 e~£ctron.fc
repn;lsenlal!on of that content "Oigitzatinn", "D1giUzir1g" and "Digitized" shal: f1BV0 corresponding
nJoa'lit.gs"
N

~A

"1,5
(I,;;;t is

:',r.:m1..V;,?,f,( means a person tllat accesses or uses me Google Si'Jlvices,
l"f.2Q9.£!§~Qtglt9L~Q~oD.Y'>

rneans a digita; copy retained b}< Google of the Seiected Contel1t

DigJtized by GODQie,
1.6

"Q~9illQ..§,?.I.'tces·' m~ans

Google'$ products and services that are accessble throlJ~lh

;"nd olherJVlse prov:dod by various computer and d€cironic technofogi!.ls. networks (syndic:ated and
othelwise) aGd SystSHiS, including withollt limitation, mobHe wi;efcss services and lnternel-based services
8GcessiblB thmu9'1 the GDogie SHes and any Boogie syr.{Hcatkm pertner sites.

GOOG05000306

A-607
Case 1:05-cv-08136-DC Document 1053-2

Filed 08/03/12 Page 15 of 51

1 .7
«5:''.H!.gJ.f,.. $..tt~'' means any web site located at a GOoglB·ownsc! domain, including ail
subdorrwins and ditf.Jc:tories tl1ereof, 8nd all succeSSQr sites theret<),

1.i.J··jjQ.§j.?'.Q..~Ql!,lEmt silai! l1ave the meaning set forth in Section !l.. t).
»\il!1L~!LL~m.1' SI'l~lli

'i.S

l1ave Hle meaning set f\xlh in Sadlon 8.1 .

i.10
"Oti'lor UJf<w/' rneans any library (inciuding BP,j libraries affiliated Of assooiated Wittl any
u0iv'Jrsity or other BOuc13tional institution, oUler than University) with which 8eogle has an agreement 8S
of the Effective Dale cnncerning Digitization by Googie of conter;t from that library.
1.11

'\).r.t{§1:§.\iy..Q[gA?i..Gg'p';/ means the Digitized copy of the Selected Content as specified in

S0ction 4.7.
1:12
"Univ<lrsitv Ubr(Jries' D!(@~Lg.9.f.1.~f!.nr means content that University Ubraries a!ready
'lave in their posSeSSiDi' in Digitized fom:, as of t.he Effective Date.
'L~3
";;'DiY'§L~j}y.j,.jQ[gri22·· means those :ibraries of the ten campuses of the Universiiy of
California set fort!'; on Exhibit f.\ and the University's Office of the President's California Digital Library,

Ut.,
"Universitv Ubrarv PatrOi'lli" means the sum total of ail indi'liduais and of~l2n!zations that
the University Ub,B;ies serve from their websites.

1.15

"E'.mi!il£( means a project fo, Digitizing certain SoiBcted Content.

1.16
"Proje.;! PifW" means a written plan for implementing a Project. Tbe F'fOject Pi"n sh<lU
tl10 rollowing~ (1) timetabie for Digitizing the Seiected Content (2) instr~lcti;)ns bY' UniVersity
regar<ling ~lOW thv Seiectoo Corrteilt is to ~)e coHected clOd returned by GOGgle; (3} materia! hand]'flg
ptocesSf;s for the Seieded Content, (4) if reqUired, the amount of time available to Universit'y' fo,
performing cQrlser<iat!on efforts; {5J the amount of tlrne available to GOGgle Trm" rBceipl. 01 the Selected
Comen! lint\! it is
to be returned ~o University; and (6) a budget for the PmieGt.
l!~dlide

at,s

1. i I

"EeneN8' Term" shail (laVe trle meaning set forth kl Section 3.".

1.18
X~eh,cted Content' means the porfior~ of the Avaiiabk-l Content that Google desires to
\' inGor~orat: int.o the. G?ogle Sefvico~, tJottl collect!,'e!)! and its Gt)fr:pcnent p.arts, induding any
anD al; CHnBr worl<S 0, &utnorsrlip B:cluded ,herem.
Djg!tiz:~

1. i H

2.

"T'::mn" shall have the meaning set forth in Se..ction 8 _1 .

DIG!TIZAT!ON OPERATIONS.

2.1
LOG<}tff1£Ut~J!..lg.i.~j;:;;9,!l~~n ...Qp.§r.9.tjQf.l. Selected Content '11m be dlgitze(j ill a d~;signated
Digitization facility_ The fadllty wi!! be located at a site controlled by the University nr at one controlled by
Goog!e. Where the facility is controlled by the University. the Univ<arsity shail pmviae Goople with
Di£iitize the Selected Content. If University is unable to provide such space,
adequate pnysk:ai space
University shaH cf)(}pen"te wi,r< Googie to identif~1 and obtain spac$ thal GooG!e c:.~n use at reasonable
rales. if theh,;oillty is provided by Google, Google shall pay for any and an fees :and costs assodated with
thB use of said space; University shaH not be Habie for any such fees and cods, ~\ihere th" raci!ityls
clJntl'O!icd by 800g16o, then Ooogle may remove some n: a!! of the Selected Content from Universfty
pr0rf:ls~'$ to petTOml m~!tization in its fac;1ilies.Site selecton will be egreedby both parlies and specified
in th~; '··proj.~d Pian".

zo

2.2
IdenillY\G.Q.1lnc cont'&,tlr.m ..f,ontent to be Dlgjti{~~ The Pti'ties shali in good faith identlfy
.AvaHable Cc;t)\ent thai Goo~Jle mey e[ect to Digltize; provided that UniversHy agi'ees to corrlmii M less
than ('<NO and a half ,..,IEio!" (2.,5fJO.OOO) volumes to the Digiti;wtion <'.!fforts under itlis Agreement. It1
additiDn, University agreE:~s that fu; <., period of sixty (60J days frDm the Effective Dole. University wifl
provide or provld& Google Wm'l 3CC&SS to no less than six i1ur',d:e(j (000) bcx)ks 01 Selected Conient per

GOOGL~ CONf=O[NTU\L
~:::XE(;~fnON

C()PV

2

GOOG05000307

A-608
Case 1:05-cv-08136-DC Document 1053-2

Filed 08/03/12 Page 16 of 51

(1B)I t(} Difjitize. Uniw;,-sl'ty ,viii USB reasonable efforts to provide or vovid" GonpiB with access to no less
ibm thme thousand (3,000) books (or such amount tr18t is mutua!!y agreed to by the Parties) of Sd<:~cted
Content per day to Digitize CGmmenGing on [he s[xly.firsi (6is~} day after tho Effecth:e Date but in no <,we::st
!ate, thai') ninety fOOl days from ihe Effective Date. 'The Parties shall C{)cperate in good faith and whh
diligence tc develop ~., timetable for completing the Projecl: Plan fer Digitlzir:g trK~ Selected Contem.
2.:1
9:'?!.lgC!inG th(~ SelectM Content I/Vilere Selected Content is Digitized in facilities
by the University, tt;('; Univrm.lity shaH be responsible for loceUng. puWng anci moving the
Selei;t~~d C~l!lteni.(O and 'f,'orn the designated Djgltizalion fe:1cility BS we!! a~, re-sh$l'lk19 the Seiected
Gon!.ent wh<:m the Dipitiz.ation is complete. Where Selected Content is Dig.itized in fScC:iliHes controlled by
Googie. (he University shaH b€ fesponsil)ie for i('-cattng. pu!iir:g, and lHter reshefvln<J the Selected Content.
If agreed upon by the Parties ir, a particular Project Plan, the collection, puliing, moving, ,,:rid reshelving
functions. may be assignEd to Google. Google will be responslble fo;- arranging and paying for any and a~i
costs
j',)B~~ ~~s"oci2ted ',lIitr, transportlnfj tne Selected Content to and l';om University and storing it
During", Prl}jBct GV.:PiJ!B agrees tK~t each Clgitizalion facility it contm!s wi.il. c:l. ali times lJe reH50'lab!y
;::.108'1, dry, cod, prot~~c.ted frorn fire and secure against theft and Ifandaiism t>nct at no Emf': shall smOKlnQ
bil pBnnitte.i in any OiGitizaticn faem!y. Googie nersonnei. agents, contractors and other rl;\pre$~!1t;!tives
invo'ved in the Digltization and/or handling of trle Selected Content wili sails!'y and comp1Y with the
s\amlards mutuaily ag,eed by the Parties if! the Projecl Plan. Upon ,:;otT:1110nCemBnt of a Project,
Uniw:)[sity shaH at its sole diseff;tion perform any conservEtiOrl efforts, at its expens!~, that it clelcrmkl€S
axe required and/er desirable for the Selected Content plioI' to Dig;tization. On a m!:ing baSis, as this
cOrlserva1ion effort is Gompieted. University shall provide the COllsetV()C Selected CO'lten~ to Goog!e for

(~ontmlicd

"ina

Digittzing,
2.4
Digitizing til<, Seiected Content Subject to h8nd!!ng constaint<, or proc<;;Qures specmed
in the Projf:ci Pian. GOOgl8 shall in its sole discretion determine how iJest k. D:g;tize the Selected
Content While the Selecte,j Content is within Google's possession, Google shall use commercially
reasonable efforts ,0 minimize damage to tr!e Selected Content, lndvd!ng hflnfJlinf! the Selected Cont.<,}f1t
in ao:,ordar,ce with handling instructions set forth in lhe Project Plan, if any. If the U!~ive~'sit}' establishes
th,,[ SeieGie,j Content )NaS not returned in 5ubstar;tk:llly tf1e same condition, Goog;e wil!, at Coogle's
option and the Un~versily's sole remedy, either r-eplac-3 the Selected Content in ql:es!km ()f pay the
UniverSity for me tepair or replacement of sLich Selected Content up to a rnaxirnurn as may [)e spedlled
in the Project Pbn
2.5B.~tWf.\ ..9.tJb~.. $..fJf,cted Content. G00916 shall return the Selected

Codont ~o the hbmry
Coogle obtained it and in 1i"le like manner in l.vhich it was coHected after Google completes
mgtlizing the Selected Content. Google wiH use reasonab'e comrn(;;'cI8i efforts to em,mre lhat Select.ed
Content is returned '.vithin jen (10) business days of its DOing scanned or after a determination is made by
Google trial Se;ecrrxi Content wi!! not be scanned. Notwithstanding the fmf'goin-J. Goog:<3 agre~s that no
n'aleri[1!s in a Project "-,,,m b-e off Ut~iversity's shelves for longer ihao fifteen {is} business days or for a
longer periOd "is :-t:t:y be specified in the Project Pian.

from

wh~ch

3.1
G.9.~~;~.2c!W... p.:i....v.r.\\:!.~!.~(!~{ In addition io COSIS mutually agreed upon Oi the Parties,
University shaH bl$ re;,ponsible for the following costs: (a} those related to locating and puHil'1g the
Selected Content as wBli as re~shelving the Selected Content when the DigiUzation is COl'nplete, (bj those
relaterl to Unh/EJrs!ty employees and ~'\gents whose parlicipfition is contemplated by this NJreerned, (c)
neiwork bandwidth and dBta storage ,equked by University to receive all of H,e Uni1lersity DiGital Copy;
(0) exisUng DBn(jwldh avai!abk; For use by Googie to iransfer Digitized mes from Ur,ive,sity facilities to
Con-gin's data G<.mi.Hfs tu the exteni ttlat University provides the Digitiz8ti{}r1 faGility, (e} University space
thatrn<lY be 3vaiiableand accBptabie tt) G()Ogle for trle Digitlzatlon, (!) transportl'ltiof: of S<'liectnc] Coriteni
to Clnd from irl$ U"iversity facility in whicrl the $elec:ted COil tent is !K'rt:"l~1i1y kept to 1iInd fnyn the
OigHi"ution faGility provkie,d by the University. (g) any conS(lrvaUon efforts that University elects to

GOO(11..E;:

CGNF!D~'.:.NT"L;\~,

EXFCUfH.)N

(.~OPY

3

GOOG05000308

A-609
Case 1:05-cv-08136-DC Document 1053-2

Filed 08/03/12 Page 17 of 51

'Jnciclrtake en the Selected Content priDr to Qigltizing, and {Il) barcnding anG a~;sociated GBte) enlrr t.o
barcochi: 1h~ SC·~8(;ted Content.
3.2
Costs l;(gm,?',,91':.f.~~9.p,g.l,~. in addition to costs mutually agreed lipon by the Pa!iies, G;;;o(ye
ne (e$ponsible ks!' the foHowir,g oosts: (a) those related to Google eiT:pbyees vJtiose pE'lrticipBUon is
::.;ont0mplai~(j by [his Agr<!1liJn1&nt, (b) tlcm1ware and sofh%~re required to Digitze the Selected Content, {c}
space ruquln;)t1 tG Dlgilize the Selected Content (to the extent not provided by Umversityj, (d)
h,Hlspmtatkm of SBi€f,;ted Content from me University facility Wt1ere the Selected Contfmt is nom1Bily kept
to ;;; 000gie designatHi ~acHity {to the exlent not provided by UniW;1rsity}, and (e) eli GOsts related to
harcoding and inventory record building for materiais selected for Digitizing that do nd have a barcode
wne:) puileri from the shelf ("dumb barcoding"); provided that (l) Gaogle wiil bem such IX'l:codfng costs
0:1!y If University j}{.;rsonne! Elre unable to insert a barcode from University records r~nd, in SliCh case,
IJnivendy p<tff;onn<.~l will dumb baiCDde the work and the costs wW be tded to Gnog?<:r on 8 mutually
agreed upon time :.'lnd materials basis {stJGh agreement to be in writing and signed by both parties} not to
exceed $050 per wor~t;arGode{i; and (il) the Parties wili determine the ~ppropt'iate flow of \lvorks SO thaI
University wiil b2\rccde at Goog!e's expense not more thun six (6) months ahead of the Digitizing
schedule k)( "lid, works. Ui"\iVers~iy agrees to provide to Google its c;menl costs 10 hatC{fde works,
$!'I"JI~

3.3
.rlt.lQ.cets> Not'Nithstanding tile foregoing . University and Google rnay jointly D;;;velop a
budget for Selch Prcject Plan, pu,suant to whrch ~he Parties car; aHocate t'10 Gost of researching and
icentitying tne Selected Ccntent and perform~n9 any required copyright msearch and clearances,
conservation, and metadata development as may be required. Any slich budget will take precedence
OVc;; the provisions nf Sections 3, j and 3.2 above.

4,

QW.N.!;!l$.tm~ AND

USE OF

Q1.~IT AL

COPIES AND SERVICES

't. .
Qgpyriqi';! Status. The Parties understand that the Selected Contert may inciude some
\Nork.s th@l wiH be (rea(ed hereunder as p~lblic domain works and some works that wi!! be treated
her;;;umler as :n~ccpyright works. 80th Google and Universit)' agree and intend to pe:iorm this Agreement
in mmpHanc·" with copVdght law. Each PBrtY'>lVm be responsibie for the determination of how to treat €I
wor~: fer each jurisdiction at its sole discretion. Notwithstanding sllch determination, if either Party
bBEeves (l work (or ponior: thereof) $hO~lid be treated as an in-copyright wo:l<. in either tho United Stat~,s
0, another j;Hisciiciion, amt so notifies the other Par1y. ttlen, within forty~eight (48) r,ours 01 such notice.
such work (Ot por!ion il'emci) S~lal! be treE.tec as an in-copyright work for use in the n)leliant country. 1n
addition, GotJg!!} will i;"f1Qieme!1t processes whereby any person or entity can :-equest Google not to
Di9itize any A,;aiiatJie Content or to cease tt:e display or use of any Digitized SB1Bcted COiltenl which
800gie wii! compiy with so long as Google delermines that the person Of entity rnai<.ins the request is the
cooydght hoidBr Dr flB.S apparent authority to act on behalf of the copyrigt)t holder.

Ov...·ni~f.§tjp.n.?lJg •.\I~~ .. 9LQ9.9.glj:1 Digital CQ.QY, As between Googie and UniverSity and
4.2
subject to tile provlsions in th.is Section 4, Googie $hall own all rights, title. and interest in and to me
Goog!e Di(~ite~ Copy-

4 '{
GOO(:,i9 "JJ.iL.9.LG,Q..QQle Digital.~~.QP'y: Subject to the restrictions sel foith h~rein, Google
may use the GOOgl0 Digital Copy, in whole or in part at Google's so!e d!scrotioi1. suhject to cOP1-'l'ight ia'N,
as part of the Gnogle Services. Google agrees t....laf to ti.e extent that it or its successors use any Dlgltized
Selected Con lent in ,xmrlfld.lon INith any Google Services, it Shall proVrde a service at nQ cost t.o End
Usms {n for both saarc·h and display of search results and (2i for access b the :display of!he hl!! texl. of
pub:lc domain worKe; Gl'Yltained in the Digitized Selected Content 1'0 the {oxtent portions of the Coogle
Dl{;lta! Cnpy are either in the publk domain or where Google h,,1S othmv!tse 001alne(j Cluthorization,
800gle shall have the tight, in its soie discretion, arnong othor things, to (,,'I) index the full text or content,
(b) S(W,,'$ aod tiiSpiBY fl.4·sizeti digitaiimagescormsponding to thos.e porlit>!1s, «(;) make ffivaibbie fui! to.x!
rif content for p:intinr,i andlor [lown!oad, and (d) make copies of such portions of the Googie Digital Copy
clnd po'ovid"" license, 0, sell suer, copies \incllJd;ng, without !imitation, to its syndici?\}on partm~rs). for all

GO{)GU:::: CGr-..;F:0E::N'C;/\L
;:'~XEC-UTiON

copy

4

GOOG05000309

A-610
Case 1:05-cv-08136-DC Document 1053-2

Filed 08/03/12 Page 18 of 51

{)the;- portions of th; Grmgle Diuitfli Copy, (3oogll1 may index the full text G, content but nlay not serve or
H)(~ fuil-sin,:r.l d!gitBi image or m~ke available for printing, stroaming and/or download the fuE
content unless GOO<Jkl has pem1isSiOnor license from the copyright owner t,:) do so; Google instead rn;w
serve and display (1) an excerpt tha1 Googie reasonably determi11Els wc'..ll<l c.onstiti.Jte fair wse lmd""
o:)pyrigi1t i2:W af1d (2) bbH()grapnic (e.g., titiB, author, dale, etc) and ail:s .. non-copyrighted infonnatbn. i.n
the event th;:,l Google nas receive!;! a Hcense 01· other permission [rom tilB ,~pplic~1bie copyright 110ider to
use in-copyright work.s iii the Googie Digitai Copy, GoofJle may use those works in ,'iny manner permil.~ed
under Hw terms 01 such license.

dtSpiay

4.4

.$~'~Jf.(tL?'.Jg .. P.ny.!?&3-: ..B.§fl§[);h[)g...Goo(:.!e'S Use ofJJ}~U;:;ocgie qjgjtai

implement comme:(:ial!y masonable

technolog~::;ai

Copy. Google Shall

measures (e,g., through use of the rob()ts.txt proiocol)

to restrict 8utorrH'1lc,j access to any porlion of the 800gle Dignai Copy thBt is in-copyright.
Goog\e
;lqrees thai the security measures applied to in-copyright portions of the Gc){)gle Digita~ G()py wll! be the
S~1me or $qlJiva!~wt to t~10S(:! ernployed to protect Hle information contained in Coogle'S index. in addition,
Google shail maintsili on lts website a privacy policy' that. governs coliecli<Fi and use of !llforrnaMn that
GOGgle obt,~!ns from End Users.
,t5
Q\ijC,fl'L«t>ip .. ffiDQ....0.9.Xl~r.?L .. 9.L.G.mle Services. As bet<;'<BBl': the Parties, lhe Google
Services and ali ;xmtenl therein are, t:1fld at ali times wi!! remain the fJxd,-!sive property of Gong Ie or its
partners; nothing \n this Agreement impliet; any transfer to University of any t'i,vnersnip interest in the
Coogle Services. University acknowledges and agrees that Google retains control of the <300g18
S0rvlces, and that tile design, layout, content, functions and features aT the Googl$ Serv;ces cm~ 1:11
GOo}Jle's discretion. Not\'1i!hslanding anytning to the contrary in this Agreement, Googl€ is not roquired to
make any or an of thc~ GOGgle Digita! Copy available through the Gongi£: Services.

4.6
.t!Q$~?g.. §.9..:.\!.t9:D. During the Term, GGogie will provide searchable acce<.s to the Google
Digital Copy at no chaiti" to Universily and to University Library patrons via iii website that wi!! be hosted
by Goog~e (the "Hosted Solution";' The design, layout, content, funGtiOf~S and features of the Hos.ted
So10tiQn wi!! be detetrnine(i by GOO£iB but sUbslantiaHy simHaf to irlBt provided by Goog;e ta any Other

Llbrz:ry.
4.7
iJni'"ersitv Cioita! Conv.
Unless otherw:se agreed iJy the Partes in writin~;, the
"University Digital Copy" means the {jigii.al copy of the Selected Content that is Digitized by Google
com>lstir:g of (a) {') set oT image and OCR riies, (0) ass{.'d2ted meta-infom,akm about lhe flies !l1c;udng
bibiiogr,,,phic info,mation conSisting of title and auther of each Di~Jitized ;''l.'OrK. <lnd technical inforrn<>t:on
(;Of1:)\stip.{} of the ciaie of scanning the work, infonnaticn about which irnage files correspond to what
Digi1ized worK, and inforrnation pertaining to H~e logicaf order of image files th;:'lt make up a Digitized 'Nork,
(c) 2 list of works Ulat are supplied for Digitizatio!1 but not actuaily Digitized. and (d) the image coordinates
for each Digitiz.ed Work ("Image Coordinates"); provided that Image Coordinates will cdy be provided (i)
so long as Univefsi~y compiles with the volume ccmmltments set forth in Seeton 2.2 and (Hf piJrswant to
tI1(~ n~strdions on University'S use and distribution of such Image Coordinates set forth in Section 4.10.
4.7,1
Google agrees to provide to University access to one copyoj' aH Digitized Seiected
ConlBnt that has been "SuGcessfl1l!y Processed" within thirty (30) days afte, the Selected Content is
Digitized, or in a timeframe ml1!uai!y agreed by the Parties. Selected Content is "Successfully
Pn:lI::essed? when Go{)gle determines it has sati$factorHygOl'lG through all Sll'lges of Go0918'$ Digitizati(1),
post pmc.(lS$ingand quality .aSSl1fanCe procedures. [n addition Boogi(~ wiii provide ti1e University with the
Bbliity to sample the rHes for two hundred and fif0' (250) Dlgltized works per mon~h to assess quality,
Coogle agreesttmt the quaiJty and type of files pmvidedto University in the Univers!ty Digital Copy wiH he
SubS("mtia!ly simii";r to the quality and type of lites pro'ilded to any Other Library. Further, t!l(~ quality and
type of fU~s s\iPplled tJy (;oogi13 to the University wm C'-Of\forrn to a minimum speCification estabiished by
Boogie in conSUltation wilh the University and by those Other Ubraries. Google si18li provide the
University Digitai Copy vi;" a n~twork connection, or in any other manner mutuaHy <lgreed upon by the
Partf:~s, Noiwitn$tl..,ndinoanythlng to the contrary herein, Google m",y wiHIl"iold ",flY works in dispute fmm

EXECUT10N C{)P-(

5

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Case 1:05-cv-08136-DC Document 1053-2

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tho Univel'sity Digilal Copy an,l ti,e University wiil delete any such works that 'were previnusiy pmvirie() to
Uni\fersHY,1s p8rt ai: the University Digital Copy.
4,8
[d,vv'netshiR andJdse of Univ(iUillY.J?lg,i,lal CGoy, As between COOGle l3nd University and
sutred to the rest,i<;ticns in tliis Section 4, University sl1ail own aU riflhls, title, and interest to the
Uni~(ersity DigHal Copy, WithOtil limiting the foregoing, Unive,sity shall ,II)! dispiav Of ctherv;'ise use tl,e
University Di~Jital Copy f.lxGept as expressly permitted in this Agreement.

4,9
g~~~L!)nivQrsitv Digit~)1 CORY, University shall twve the right to use It1e University Digital
Copy, In ·.vhole m in part at University's sr)le discretion, subject to copyright j;~w, as p.ari of se!"vices
offered to the University Ubrary Patrons. University may not ct,arge, 'eceive payment or other
consideration for th~ use of the University DigHal Copy except that Ur:ivefs;t~' rnay charge for t"se o!' any
services slJp;)leme"tal to t!"',e original work that the University suppiies t.hat £Ide value to the lJmvefs:ty
Digital Copy (for cxampiB, Uni-,'ersity rnay c1'18rge University Library Patrons far aer..:ess to armotatio!ls to
v,!Orks frel'''' OrDfessors and schoh::fS DlJt t'1C original work will aiways be ar:cessible ','lithou! a fee), and to
recover copyin~l CQsts acilJally incurred, University agre~Js that 10 tf1e extent ~t makes any porth;m of the
Un[versily Digii",i Copy publicly aVclilabie, that it wi!: identify till; works, in a statement on a web pago or
other aGGess pain! to be mutua!!y agreed to by the Parties. as "Digitized by Google" or in a substantially
similar rmmnt''''. Univarsity shaH imp!ernm:t tecrlnoiogica! measures (e.g" thrQugh uSe (If the robots,txt
protocol) to restrict automated access to any portion of the University Dij:)l.al Copy or the portions of th"
University \i'·mbsiie- on which allY portion of the University Digital Copy is avaHablo. University shalf also
prevent third paiUes ITom (3) downloading or otherwise obtaining any portion of ttlO Univeft>lty Digital
CCP'V for commercial purposes, (b) redistributing any portions of the UnivBf'sity Digaa! Copy, Of {c}
automa1Hc and syslernctic dO'1mioatHng from its website image rHes ftom trw iJ,j,ve,'sity Digital Copy,
University shall develop methods and systems for ensuring that substantia! portion; of the University
Digita! Gnpy are not ctow·nioaded from tne services offered on Universiiy's ;Nebsite or otherwise
disseminatEKi to the pubiic at !arge, University shall also implement security and handling ptOCOdt.,;(BS for
the UniVl?:'sity Di£fita! (:('9)< whie!, procedures shali be mutually agreed by thQ Parties. Except as
express!y",ilowed h;;)rein, University will not share, provide, license, Dr seli the University Digits: Copy to
an}" !hit'd pa;ty.

4.1O

Disttibution of the Univ~r~l!L DiGital CoPy.

(a)
Uni'1'3mily shag not share, pmvide, Ik:cnsc, distdbute or seil the lmaga Cco;-cif1l:ltes to
8ny "Hinty in any mannef'. Upivers,!y may use the image Coor<linates only as part of th," Univmsiiy Digital
Copy fm· tlle s,-)rviGes provided te UniverSity Library' Patrons set forti, in Section 4,9 above,
(0)
Sut)j0ct to the resiric1ior,s contained herein, UnEversily shall have the rigr(t to dlstriblite (1)
no more than ten percent (iO%) of the University Digital Copy (bul not any portion of l.he Image
Co{)rdinaies) to (i) other !lb,arIes "ll1d (ii) ec!ucational institutions, ill each case fer non~commercial
researd1. sC;fl0lariy 0; academic purpc$$s arl(i (2) all (Ji' any portion of public donain works contained in
thE! University Digit",i Cooy (but not any portion of trle image Coordinates) ta research iibraries for
research, sche1arly and amdemic purposes by those libraries and the faculty, silKie:'1ts, sc!)o!ars· and staff
authorized by said Hbfaries to access their GomrnerciaHy licensed electronic inf<:H'I'(l~ltion products. Any
recipient of lhe U1!v,.:;-rsity Digit",j Copy under this Section 4>1 0 is referred to herein as. a "ReCipient
institution." Prkx to ar.y disitibutlon by University it a Redpient institution, Google and the Recipient
institution must (lave entered into a written 8£ireemenl on terms acceptable to G{)()gie g<JVlmling the use
of the Univ<~rssty Digital Copy and that, among other things,provide ,an indemnity 10 Googie. in addition,
any di~tfibuijon by 1.!n~Vf;>fSay to a Recipient fnstitution is subject to a written agreement that {A) prohibits
that ReCipient Institution from redistributing withoutiirst obtainingtl1e prior ",,'ritten consent of Google, (8)
maims Google an express third party benefiCiary of sue'" agreement, (C) provides sn indemnity to Google
frorn the Recipient !nstitUion for the Recipilnnt Institution's us~ of the Selq)cted Cont€mt, (0) con!.ains
limitations <It !,,<)st ;:!$ H}$lricUV"l as. th0 r~striGtions on University set forth In Seck)!') 4, .9, IE.) c{)f1tains
Hmrtations on the usc of the University Digital Copy consistent with copyfight fa'.v and the lirrd!ations set
rOfth in dauses (1) and {2) above. and (E) ,,,quires eru;h Recipientinsti!utlon, te thr,! extent it makes any

GO~.:K~LE::

C();--;flDF..;...;T!AL

[X}:~GtJnGi\;

C()py

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Case 1:05-cv-08136-DC Document 1053-2

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portion of the University Gigltal Copy publicly available, to identify the works, in a statement on the
applicable w~lb pa90 or other acceSs point, as "Digitized by GOOg!fJ" or in a sLl~}s!antiBl!y similar manner.

6, ~
Ae<Xl$.S. Goo~l!e 5iwi! 118V0 thti right k) access Selected Content durlt)~l Univar8ity
blJsinessfsi<')ff hours as mquimd to {~xerdse its rights and perform Its nbi.igatkms hereunder. If n:;queste<1
by Goog!e, Unlversty shaH provide Go091e with access to Selected Content outside of University
business hours [}rovided that Gaogle notify University at least two (2) days in advance or its intent to
BCthSS such matwl8ls.
5.2
t;!,~~.tI9.r:L??:!j!;lil, Hoe Unive,sit" prograrn manager responsible for \i'H;f Se)ecte(~ Content
involved In any Pmied Plan shall have authority to agree with Google on the time f,wnes an<l pr<j(;t,dures
\,o.g., collection, cnmwrvatkJt1, end handling) associated with that Selected Content, g GClogie in good
faith Detieves that the time frames Hnd p,ocedures requested by tile University pH/gram manager are
l.mnsasQnabk:, 80091.;; sh<'l!l e5C"i{lte the matter to trle University adminish'alive contact; in which case
Google. th.l Unhio:sl~i program manager. and the administraEva contact shar! meet to resolve the issue.
5:3
.$\d.fH~QJ:L.f.CQm. University.
University shaH appoint one person to serve as the
adrninistrativ0 contact for Goog10, shou!d cdministratlve questions or isscles ;J!rise <kirii)g the course of
this Agretiment This administrative contact shail be avafiable dlir~ng regular Unlversity business hours
(9:00 a.m. tD 5~OO p.m .. Monday lhmugh Friday} at a telephone !'lumber End e-rnaii address to be
providfJd by liniVf;'sity. Un~versit'i shan also aPPOint one person to serve a:>; the teGtmicai contact for
Goog!e, for ot)tainirg or regulating the use of the University Digital COP~f, ThiS technical contact shag be
available du:in[i reguiar University business hours at a telephone [lumber and e~rnail address to be
provided by University Upon execution of tl1ls conimct, both GOGGle Bnd University Sh8il identify these
;ndi\ljdu~?ih:~ i;1 w7~tlt:·g( vii"'tlc:h rnay be! ernaiL

5,4
S~'P~lO!t fm1L ..Si!.Qq~, Google win appoint specific persons for technic,,"! and
administmtlve cont<lct purposes. as identical to the condiUons specified In 5.3 for Univ0rs,(y contacts,

6,

9.oNF!DENTiAllTY

e, 1
Q9!:lf1i~nilSlHy.
By viriue Of this A';jre0rnent, eadl Paity may have access to ;nformatlon
of the othm Pa,ty whci'! is <~a;lskjBred confidential and prop,ietary, including pmduct pir.'lf1$, customer lists,
and proprietary tech~o!ogy or meinods ("Confidential Information''), whethw disclosed in tangible or
intangible term. Idmrr,aiion disclosed in tangible form will be considered COI1fic!ential Inforrna!ion if it is
marked i3S "Gonfi<:iential", lnfonnatiOf~ disclosed in in1angibie form wi(; be considered Conf\dential
information if the <iiscbsir:g Party Clearly indicates that It is confidential at the time of dis,;!QSl.re.
6.2
p..1:)QaiLlitlli. Eact: Party sflailexerdse at least the sarne degree d' care 10 avoki U1e
publication v, dis$sm~nali()n of t~1e Confidential Information of ti1e other Party as it affords to its <,wn
confidential information of a similar nature which it des [res not to be pub[ished or disseminated, The
receiving F'arty sill:lg not use Confldf.W!tial lnformation oT ihe disclosing Party excepl in cmneclion with this
Agr(.'{lrnent ~,nd It.I~J matters contemplated hereby, The obligation of tile Parties rwt to disclose
Connd~;ntia!infQi'maU(Jn swrvlves tennlnaEon fir cenceil;;1tiol1 of this Agreement.
.~pt.?p.l1m:t§ Neither Pany is obHgated to protect Confidential Information oftl1e other
6.3
Ps,ty that: (l) is teceived by the receiving Party from a (hiI'd party which fs noi knoWIl to the receiving
Party to be (,li'Kk,!' fl ctmfidfml:aiity obiigation to tf]e disclosing Paliy, or (ii} is known to or deveiop~d by the
receiving Party ind<~pendm1Uy .\ilthout use of, or reference to, the Confidential Information, or \iii) is or
becomes g>::!1srai!~' avaHable to the publlc by other thon a bmach of duty hereunder by the reveiving
shed to others by the disdosirlfj Party w!thotJt restriction on
Party, (iv) has been or is here8fter fum 1
disdosure, ~ff (vi is mquire<1 to b", diSclosed by <Jny law, govermnental author"ty (l, legal process

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Filed 08/03/12 Page 21 of 51

("Process"); prcvkiod that {ai!he Recipient shaH promptly notify the Discloser of $UGl1 Process; and (b}
trw Rf:Jcipient $l1,-~ii,,<)t produce Or disclose Confidential Infmrrmtion in response to the F'ro~"';e$s unless the
Discioser has C:; n,:quesied protection from the appropriate court or otheilegai or governmentai authoritY'
requirinf:1 the PW(;iN:;B ar-\! >iuch request has been denied, (2) c,onsenled in writing tn lhe production or
disciosun.'J of th>::; Confid<!mtiai hfDrm8hon in response to the Process, or (3) taken no Bction to protect its
interest in the Confidr:mtia! Information within fourteen (14} business days after the R(~cipiBnt h",$ giv"n
notice of its oblif.lation to produce Of discloSf: Confidential fnformatioo in {el>pons<;! to tns PWC0SS, The
Di(lcloser agi"{,,'Bs that IT ,vm indemnify, defend, and hold harmless the Recipient frg ail dumages, cosis,
n<'.ibilities; and fees, including ,,,asclrlable attorney's re<es, ariSing out of c:ny third party daims irlat the
I"Hure to complY witt: the Pr~x;ess violates an appncabie law. provided that Recipient's Ii:lHure to comply is
a result Gf adhering to the foregoing provisions; provided mat the Recipient (l) prornpt1y nnUfles tho
Disciosw (lr such ciBirn, (H) r>rcvldes the Disdoser with reascnable ir,fonr:at!(;,\ assist2mce and
cooperation in <lefer:ding the claim, lawsuit or proceeding, and (lH) gives the Discloser full corotwl Clnd sole
S\Jt!lOrity ovr~r the ddense and settlement of such claim. The Recipier:t may join in dekmse with counsel

d its cnoif..e ~:J ns OW;) f,l.xpHrlSe,

6.4
EB. Neither PGtty wiil issue any public announcement Hlfiarding th€ existence Of content
of this f\gmDment wiihod the other Party"s priQr wrHten approvaL Goog!e may inclucic the name
"Unr<Jerslty' d California" 8nrJ the University unofficial sea! in lists of other ))8rtr"IOf Ebn:!(ieS, subject to the
fo!lo'win~i:
Goog1<, may use !he University's name and unofficial seai in presentations ",Old
p,-omotional!marketing materials only with the University's prior written permission, !n lie« of s'Jbm~tHng
individual reque~,ts prior to each sLOch USB, Google may submit (~ pian fa: stich presentations and
prornotiDnalfrnarXE:tin;! mater1a[s 'for University's n:Nie-w and approval,

7.

8RAND FEATURES

7:1
OWl}:~r;:;_hh?:. Each Party shail O'Nl'i all right, title alld interest relating to its Brand Fe<-}tums.
Some,
but
not
all
eXeaYlples
of
Coogle
Brand
Feat'Jr0'",
are
locate-:.i
at:
l1ttp:i/,;vww.googio_com!oermissicnsJlradernarks.htmi (or such other URLs Coogie rnay ~mvide from time
to lime). Except'tD the Hrnitcd extent expressly provided in this Agre€ment, neither P;:dy grants, and the
oth,')" Party st:a!l r;{)l ar;quin;, <1n)' right, titie or interest (including, witt!Out iirnjt;~tjon, any implied license} in
or to \ilny 8r8nu Features of the fl,st Party; and alf rights no! expressly granted herein are deemed
withheld. All use by Googie of University Brand Features (including "my goocvAl! associated t,')erewilh}
shaH inure to the t)eneflt of University and a1l use by University of Google Brand Features (including any
Goodwill ass(lciatec thetewith) sha!i Inure to the benefit of Googk,. No PBrty shaH cn~,lIenge Of' <'lSsist
others to challenge the Brand Features of the other Party (except to proif.lci s"lch P,~rty's rignts with
n';,,;pect to its own 8rand Features) or tho registratkm thereof bv the other Pa.liv . nor shall erther Party
attempt in registei any 8ram: Fealt;res or dornak: namBS U;at are confusingly simjl~r to those of UK: other
Party.
7.2
License lo \,JJ)i:mrsity I;lnJi.1~i Features, Subject to the terms 2nd wndilions of this
AgrBe:T!E;nt, University grants to Google a limited, nonexclusive and nonsubiicensabfe license Qurlng the
Teim to disp~ay ((l{;Se University Branzj Features expressly authorized for use in this Agreement, solely for
the purposes expressly set forth nerein. NotWithstanding anything to the contrary, University may revoke
1he l!cense granted flerein to use University's Brand Features upon providing Gocgln w'itt, written notico
thereof and a reasof'!;:"bieperiod of time toeease such u!;mge,

S.

TERM AND TERMINATION

81
I?rm. Trlis ,l\grHement is effective as of the Effective Date anQCOntif1LH:lS in fuB force ~md
effect for a period of six «(3) years, unless.emlier terminated as provided herein (the "!nitial Term"). UP>:1rI
tr,e expiratiOn of the lnitial Term. this Agmement shall automatically renew for (;ldditionai 0110 year terms
(eclcl: ~i "Renewa; T!.trm") uniess either Party notifies the other Party to H'~e C(;ntrar~' at least thirty (:50)

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daY" tlefmf) nlf:' end ~1f either the hiti,~i Term or a Renewal Term. The 'Term" of hi;, Apmmnent shaH
GOmpri~>e tr'lB !~1iti8i Tmm "me any Renewal Terms.
8.2

I~1i:mjiJsMQ.Q. Either Party :'n<3Y slJspen<i perforrfl3'1Ce ;3(!dior terminate this .I-\greern(,;nt: U)

if the other Pant rnaloda[l/ bwacl1es any materia! term or conditiofl of this !\flreernent oH~d fails to cure
such breach Witrlie: itlirty (30} days after receiving \.,·rilten nolice thereof; or (ii) if' ttl£:) other Party beGOrrlf)S
insolvent or makes any aSSignment for [tIe beneilt of creditors or similar transfer evidendnn inso!w:lncy, or
suifers or permits ,he O.lmrnencement cf any form of insolvency or receivership proceeding, or has any
petition unoer bankruptcy law filed against it. Wflich petition is not dismissed within Sixty (no} d;;:ws of such
ming, or nBS ~l truste,,,, administrator or receiver appointed for its business or as sew or any part thereof.

B.3
J;:fifJJiof Exr.llitlimLy,LTen}limltion. AHer expiration or ierrrlinat!on of this /\g;'eemenl for
any reason: (I) each Party Sf;flU withlr: tllirly (30) days return io the other Party (or, at that Party·s. request,
destroy) any Contdenti:..,! information of t.hat Party trlat is in its possession, (U} 800g10 shali within thi,·ty
{2·0) days return to the University any Se!er-led Content that it has fn its possess}o(! or it; transit at
tlxmination in a ,nannef specified in Section 2..5, (m) the University sha!1 within ninety (!::!G) d[:ys download
any diglti700 SeleclBd Content that has been created by Google during lile Term but not let ciow!l!oaded
by the University at termination, ~n a manner specified in Section 4J.1. The fo!lowing sectiw)s survive
expi,ation or termination of this Agreement: 1.2.4,2.5,4 (excluciing SeatioG 4.G). 5, 8,3, 9, 10 and 11.

9.1
Muiu8J.Y.i.qrLilll.lies. Each Pariy represents and warrants io the other ""iE" (i) the individual
who executes this ,'"'.greement tws full pOI.ver and <lulrorily to do so; and (ill this .Ag'ee·men~ constitutes its
valk and binding obligation, enfo:ceable against it in acr-ordance with its terms.

9.2

Qlsda;!rL:~r

'THE ifiARRNniES EXPLlC!TLY SET FORTH ABOVE ARE THE ONLV

VVP>.RP-ANT iES PROVIDED HEREIN AND ARE tN LIEU OF ALL OTHER WARRANTiES BY THE
PARTiES, EXPRESS OR !i\ilPUED, !NCLUDING .4i\IY IMPLIED WA.8RANn'" OF \·lERGHANTABH.lTY

OR FlTNESS FOR A PARTICULAR PURPOSE, VVITH RESPECT TO THE SU8,1f::CT MATTER Of THIS
AGREEMENT. \'oiiTHOUT UM1T1NG THE GENER.ALiTY OF THE FOREGOING, BOTH PARTIES
SPECIFlCALL'{ D1SGLAn,1 ANY WARR.4NTY REG,A.RDiNG NON·iNFRiNGEMENT OF THIRD PARTY
iNTELLECTUAL PROPERTY.

10.

INDEMNIfiCATION.

1D.1
B.y' ..~?gi?9.\~. Google shail defend, indemnify. and llOlct harrnless UniwH'sity from and
;;my arlci ;;i! HabmUes, damages, charges, fees, including reasonable atiomeys' res$;, costs, and
expenses ;;rising out 01 Of in any way related to a tl'lird patty ciaim, lawsuit. and/or <lily other legal, quasi.
10gal. or BdiTlirdstativ0 proceeding Bilegi(!g tha~ any 01" ali of the following violate any applicaiJiE! law,
including, but not limited to, ar, allegation of copyright infringement: University's provision of Available
(::ontentto Googie for digitization to tile extent such provision is aHeged in be direct. Of secondary
copyrl}Jhl infringe;"",n!; Google's DigilizatiOn of Available Content; the use {)f dis!'ibd.ion of Boogie Digital
Copy(!es}; un<lJof !t,e use of lhe Google Digitai Copy in connection with Googl",Sarvices. The foregoing
indemnification excludes any third party claim tilat relates to University's use or tiistritJution of the
University Drgita! CD~Y.
aga~nst

'102
f,b:,.. \J.nix:~[~Jjy'. University shail defend, indemnify, and hold hannleS<i Goegl" frorn and
against any and aH liabiiities, damages, cilarges, fees, including reasonable attorneys' fees, costs $nd
expenses arislntl out (lor \0 r'H1] way related \0 a third party dailY':, lawsuit, andfor Bny otr,er legB\' qU;:lsi·
!0Q81, or administrative proceedjng8i!eglng that any or all of the foliCl'l,ling violate any app!icable !mv
including, but n01 iimited te, arl ailegat;o'l of copyright infringernent: University's use 0: UnivfJlsity's
distribution of the University Digital Copy. The foregoing indemnification excludes any thi(lj party ciaim
that relates to Un(V(;fsity's provision of lwailable Content to G0091e for cigitization to tne extent such

GO(Y)LE

COi\FiDENT;A~~

E::<t:::.C;UTH)N CDp·y·

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provision is alle9,;Jd to be direGl Of secor:dary copyright inii'ingemen(; Goopie's Digitiz3Iton of Avaiiable
Content~ (he Gooole Dlgltaf Copy; i~le use or (jistribution of Goof.~le DigitBI COpy(if)S); andior the use of the
GtKlgle O;g;\<:;! Copy '!l cnnnectirJr) with Google Services.
GBr:araL The foregoing obligations shall (~xist only if the Party seeking ;ndemnification
promptly !!oilfies the ~ndem!1itor of sue!1 c!,,)im, (il) provides the lndmnr;itof with
re<:lsonc1ble infcrrrlatiof;, a$sistance and cooperation in defending the claim, la.,."sl.lit or proceed10g, and {iIi}
gives tile indemnitor- fuii control and solf.) authority OVf1r the defense and settiement of such claim. Tho
!ndomnitee may JOin in defense with counsel of ITS choiG8 at its own expense.
'10.3

("lnd~mnit!'.1Il!";:

11.

n

LIMITATION OF lIASIl!TY

IN NO EVENT WiLL. DTHER PARTY BE Ufo.!3LE TO THE OTHER FOR LOST PRO"'lTS OR N-N FORM
OF !NDIRECT, SPECIAL, lNCiDENTAl, OR CONSEQUENTiAL DAMAGES OF ANY CHARACTER
fROM ANY CAUSES OF p.,.cTlON OF ANY K!ND 'NITH RESPECT TO THIS AGHEEMENT, WHETHER
BASED ON BREACH OF CONTRACT, TORT (INCLUDiNG NEGliGENCE), OR OTHERWiSE, poND
WHETHER OR NO'" THE OTHER PA.RTY HAS SEEN ADVISED OF fHE POSSIBiliTY OF SUCH
DN\llAGE, AND is} EACH PARTY'S liABILITY UNDER THIS AGREEMENT SHALL 8E LiMITED TO
ONE MiLLlON DOLU\R.S (131,000,000). Tile Parties agree that 0) the mlllual agree~{lents madr:: in th!s
Section 11 reflect a r€Bsonabie ailocation of risk, and {ii} ttlat e~Jch Party viou~d nc,t enter into the
A~w~emcr:t without these limitations on iiabllily. T~1e loregoing limitations, however. are not appiicable to
any clarna9C~; clris:ng from a breach of Section 6, Confidfmliality. to any monetary oblt;ations arising out
r.l the indemnification 0iJligations in Section 10, Irldemnlfication, including, but not limited to,
indemnification for Ell<~!Jalions of copyright :nfringemeflt, or to any damages related to actiCr'lS for personal

lnjt.iry or

\,~.r~HfL:j rr::~scon~ll;Ct.

'12.1
No Obliqation. Notwithstanding the foregoing. GQcg!iJ shaH have no obligation tu Diglii1.0
any portion of tfl" Available Conte[l~ nor to use any portion of the Googie Digital Copy as PCJI'( of the
Goog!e Services. UkGwis<3, notwithst<'.mdinU Bnything in this Agreement to the contmry, University shall
rlOt be ottlgated to participate in the cifjitization program described in this Agreement '..,,,ltll respect to any
or al! of the Availi:lble ContBi1t Furthermore, notwithstanding anything in ths ,l\greernent to the contrary, if
Goog!e datermines, at ;15 sole discretion, nol to Digitize some or all Se[ecied Content in connection witn
one or more spedflc. Projects, whether due to cost iss>Jes, conservation concerns Of othBnNISB, Google
shall have no ob!igati(!r; tc ihf.) University with respect to Dlgitizing or delivering the University Digital COP'!
with ff:!spect to such Sl'i".N.::tcd Content
'12.2
tvliscoiianeous. Neitiler Party may assign any of lts rights 01' delegate any or its auties
\-Ioder this Agre~menl vit!1out the prior written consent of the othe, Part'i, except tha~ eith0r Pawly Ina)'
assign its rights and d<.>lii!gatii! its dlJti~~s Willer t~lis Agreement upon writtcn notice tc thB other Party 10 H
,jivision or an affiHatu ttlerii!or {that is not a competitor of the non-assigning Party}, proviDed such division
or affiligle agrees tn be bound by ail of the terms hereof. Any attempted assignment, d@;egation Of
transfer in d~'l'ogation hmeOfstlali be null and '10k!. This Agreement shall De binding upon the successors
and perrniit~,d assigns of bolt< Parties. Unless provided for to the conirmy in this ,1I,greement, any anti aU
notiCGS N other communications or deHveries required or permitted to pe made under tt',is Agreement
shall be sent to the ;r:;sp{lctive party at the mspective addrBSS idenHfied above, Notice shoH bedeerned
received (i) tlpon fe:~~;jpt when delivered personally or (li) upon verificalio'l of receipt of registered Of
cerHfe<l mali, n)[um receipt requested, Contact information shaH be updated in \fgiting as necessary to
on sure U'!<:lt each Party has cU'ront information regarding aU such contacts_ Tf1B Parties I-,ereta are and
shall ramO-lin Ind(~pwlf.lent contract.ors, and nothing herein shall be deemed to create an agency,
p<Hlnershlp, or Joint venture between the Parties hereto, This t',green:ent does Clot aflect an)' right that
either Party would !",ave l,ad, or shl'lil llaVQ, Independent of the AgrBemenl under applicahle iaw. NeHMar

GOOGt.E· CONfiDE~{nAL
EX.Ecun()l'-J G()F"'~"

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Party st1a!i be liab!e for l'ai!ing or deiayinu performancB of its obHgat!ons rewlting from any conditn!"!
hf.,yond its reasonable control, including blJI not limited to, governrnenta! a(.iion, acts of terror-ism.
earthquaKl0, Tim, tioml or nirlsr ads of God, laba. conditions, power faiiures, and lntefnet dlstlirbance~,- If
any provision of this Agreement shall ~)e adjudged by any court of cnmpetent jurisdiction to bE!
utleni'orceable or ir\\f"iid, that pmv!gion ShL~!l be Hm!ted or eliminated to the minirnum extent r.ecossa!y so
that tllis P nrf.e~'nent shaH otherwise rema)n in full force and effect and mmain enforceable between th<~
..
Parties. The failure of either Party to act in the event of 8 breach of !~\is A~1raernent by lhe oiher shaH not
be deemed a 'Naiver of such breach Of a wCli'ler of fvture breaches_ No provlsian of this Agreement is
intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon <my person or
entity other than the Parties ~md their respective successors and assigns. The section ~md paragrapr,
headings used in t~l!S .i\l;lf€:61l"I€mt are inserted for convenkmce only and shali no! affed the meaning or
!nterpret8iitHl of this Agreement This Agreement sets fOi'tll tf)e entire understanding and agreement
between ih£: P$rties, supersedes any and ali pf'evious agreements on the sllbject matter, whether written
Of Drs!. and may be ,,1mended only in a writing signed by both Parties. This ,'\greemellt shaH be governed
by the laws of U-Ie State 0f Califomia, without regard to its prinCiples of GOoiiiGis of law. Any litigation
hereunder shaH be brought if) any state or !'eoe:-a! court of competent jurisdiction in Santa Clam or
i!l,iarneda CO\lnty, CaJil'orn!B; Ul19 Parties agree that venue shall be proper in, <?nd consent te the persona;
jwi~,didion of, ""CI1 cowts, Thi." Agreement may be exect.Jted ill one Qr more counterparts, each of which
sr1£1l1 be deemed an original and al! nf which. when taken together, shalt consL'tLlte one aild tile same

[nstrurnent,
{Rest of page laft intentionally blank.]

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IN WITNESS VVHERECF, this Agreement has been executed by persons duly iiH)lflCrized as of 111$
"Effective Date···. 'Nhich shaH be the date written by Google below.

G00g1e ...

The Reg~nt~ of the Unl\l~;Sity of Califomla:

).:.:

St ...<t':t.;:::~::.~~:::\~ ......... _ ·~ ..·~~..~~ ____. . .,.,. . . . .,~. . .
....
...... : : ...: .... :.

Titk:

8'1:

_/::':1'Z~~':L",l:";;i~:::·::::~:.•;?~::.:::::.;;~;;;: : ........................__._

Title.

Date:

Date

'.:~

>

[Signawre Page to Cooperative Agreflment}

GOOGl.~ C(jNFjD~:NTV~L

E.Xf.CUT~ON

COF'Y

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EXH!SIT A

Ur,iversity Library. lie Seri<eley
University' Librar:1 ~ tJC Dav~$
University LJ:;,'ary, JC :rvine
Un!versi~y tJbrary. UCLA.
Ur>,v'ersity Library. ue rvierceci
Ur:ivers~~{ L~hrary: UC H:v~rsid€
University Ubtar¥, UC San Diego

UniV$f"sity Librarv. UC San Franf::isco
Ur:lversgy LibfB0r'. UC Santa 8arbara
University Ub:ary, UC Santa Cruz

GOOGL~. C·ONF~DEl'rr~AL
t~XEGU:iON COPY

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COOPERATIVE AGREEMENT
This COOPERATIVE AGREEMENT (the "Agreement") is entered into by and between Google Inc., a
Delaware corporation with offices at 1600 Amphitheatre Parkway, Mountain View, California 94043
("Go09Ie"), and the Board of Regents of the University of Wisconsin System, d/b/a the University of
Wisconsin-Madison, General Library System, with its principal offices at 728 State Street, Madison
Wisconsin, 53706 ("University"), and is effective as of the date signed by Google below (the "Effective
Date"). Go091e and University herein are sometimes referred to hereinafter individually as a "fa!t!" and
collectively as the "Parties".
RECITALS
WHEREAS, University is a leading academic institution and has amassed an enormous collection of
works in various media;
WHEREAS, Google provides the public with access to web pages on the Internet, among other products
and services;
WHEREAS, Google and the University share a mutual interest in making information available to the
public; and
WHEREAS, Google will digitize selected works from the University collection to include them in Google's
services. and provide access to the digitized works to the University as described herein.
NOW THEREFORE, in consideration of the mutual covenants set forth herein, Google and University
hereby agree as follows:
DEFINITIONS

1.

DEFINITIONS. Capitalized terms will have the meanings set forth below:

1.1
"Available Contenf' means the University print collection as identified by Google and the
University. Without limiting the foregoing, "Available Content" also includes University Digital Content
and any works that Google has obtained the permission of the copyright holder to Digitize.
1.2
"Brand Features" means the trade names, trademarks, service marks, logos, domain
names, and other distinctive brand features of each Party, respectively, as secured by such Party from
time to time.
1.3
"Committee on Institutional Cooperation" or "CIC" means the consortium of twelve (12)
research libraries (including the University) that collaborate on library related initiatives. The other eleven
member libraries of the CIC are: University of Chicago, University of Illinois, Indiana University, University
of Iowa, University of Michigan, Michigan State University, University of Minnesota, Northwestern
University, The Ohio State University, Penn State University, and Purdue University.
1.4
"Digitize" means to convert content from a tangible, analog form into a digital electronic
representation of that content. "Digitization", "Digitizing" and "Digitized" shall have corresponding
meanings.

1.5

"End User" means a person that accesses or uses the Google Services.

GOOGLE CONFIDENTIAL

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1.6
"Google Digital Copy" means a digital copy retained by Google of the Selected Content
that is Digitized by Google.
1.7
"Google Services" means the Google's products and services that are accessible through
and otherwise provided by various computer and electronic technologies, networks (syndicated and
otherwise) and systems, including without limitation, mobile wireless services and Internet-based services
accessible through the Google Sites and any Google syndication partner sites.

1.8
"Google Site" means any web site located at a Google-owned domain, including all
subdomains and directories thereof, and all successor sites thereto.
1.9

"Hosted Solution" shall have the meaning setforth in Section 4.6.

1.10

"Initial Term" shall have the meaning set forth in Section 8.1.

1.11

"Member Librarv" means any library that is a member of the CIC.

'1.12

"University Digital Copy· shall have the meaning set forth in Section 4.7.

1.13
"University Digital Contenf means content that University already has in its possession in
digitized form prior to or during the Term and for which University has the right to redistribute to third
parties. The rights and privileges that University has in and to the University Digital Content shall not be
affected in any way by the terms of this Agreement.

1.14

"Projecf means a project for digitizing certain Selected Content.

1.15
"Project Plan" means a written plan for implementing a Project. The Project Plan shall
include the following: (1) timetable for Digitizing the Selected Content, (2) instructions by University
regarding how the Selected Content is to be collected and returned by Google; (3) material handling
processes for the Selected COntent, (4) if required, the amount of time available to University for
performing conservation efforts; (5) the amount of time available to Google from receipt of the Selected
Content until it is due to be returned to University; and (6) a budget for the Project.
1.16

"RenewalTerm" shall have the meaning setforth in Section 8.1.

1.17
"Selected Content" means the portion of the Available Content that Google desires to
Digitize or incorporate into the Google Services, both collectively and its component parts, including any
and all other works of authorship included therein.

1.18

"Term" shall have the meaning set forth in Section 8.1.

GOOGLE CONFIDENTIAL

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2.

Filed 08/03/12 Page 29 of 51

DIGITIZATION OPERATIONS.

2.1
Identifying and Collecting Content to be Digitized. The Parties shall in good faith identify
Available Content that Google may elect to Digitize; provided that University agrees to commit no less
than 500,000 volumes to the Digitization efforts under this Agreement. The Parties shall cooperate in
good faith and with diligence to develop a timetable for completing the Project Plan for Digitizing the
Selected Content.
2.2
Collecting the Selected Content. University shall be responsible for locating, pulling and
moving the Selected Content to and from the designated Digitization facility as well as re-shelving the
Selected Content when the Digitization is complete. Upon commencement of a Project, University shall
perform any conservation efforts that the Parties determine are required for the aSSOCiated Selected
Content. On a rolling basis, as this conservation effort is completed, University shall provide the
conserved Selected Content to Google for Digitizing. If agreed upon by the Parties in a particular Project
Plan, this collection function may instead be assigned to Google.
2.3
Locating the Digitization Operation. University shall provide Google with adequate
physical space to digitize the Selected Content. If University is unable to provide such space, University
shall cooperate with Google to identify and obtain space that Google can use at reasonable rates.
2.4
Transporting and Storing the Selected Content. Google may remove some or all of the
Selected Content from University premises to perform Digitization in facilities controlled by Google. If
Google elects to remove any such Selected Content, then it will provide and be responsible for
commercially reasonable transport methods and temporary storage areas.
2.5
Digitizing the Selected Content. Subject to handling constraints or procedures speCified
in the Project Plan, Google shall in its sole discretion determine how best to Digitize the Selected
Content. While the Selected Content is within Google's possession, Google shall use commercially
reasonable efforts to minimize damage to the Selected Content, including handling the Selected Content
in accordance with handling instructions set forth in the Project Plan, if any.
2.6
Retum of the Selected Content. Google shall return the Selected Content to the source
from which Google obtained it and in the like manner in which it was collected after Google completes
Digitizing the Selected Content.

3.

COSTS

3.1
Costs paid by University. In addition to costs mutually agreed upon by the Parties,
University shall be responsible for the following costs: (a) those related to locating, pulling and moving
the Selected Content to and from the deSignated Digitization facility as well as re-shelving the Selected
Content when the Digitization is complete, (b) those related to UniverSity employees and agents whose
participation is contemplated by this Agreement, (c) network bandwidth and data storage required by
University to receive all of the University Digital Copy (d) existing bandWidth available for use by Google
to transfer Digitized files from University facilities to Google's data centers to the extent that University
provides the Digitization facility, (e) University space that may be available and acceptable to Google for
the Digitization, (f) transportation of Selected Content to and from the University facility in which the
Selected Content is normally kept to and from the Digitization facility provided by the University, (g) any
conservation efforts that University elects to undertake on the Selected Content prior to Digitizing, and (h)
barcoding and aSSOCiated data entry to barcode the Selected Content.

GO OGLE CONFIDENTIAL

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3.2
Costs borne by Go091e. In addition to costs mutually agreed upon by the Parties, Google
shall be responsible for the following costs: (a) those related to Google employees whose participation is
contemplated by this Agreement, (b) hardware and software required to digitize the Selected Content, (c)
space required to digitize the Selected Content (to the extent not provided by University), and (d)
transportation of Selected Content from the University facility where the Selected Content is normally kept
to a Google designated facility (to the extent not provided by University).
3.3
Budgets. Notwithstanding the foregoing, University and Google may jointly develop a
budget for each Project Plan, pursuant to which the Parties can allocate the cost of researching and
identifying the Selected Content, conducting conservation assessments, performing conservation work,
and performing any required copyright research and clearances. Any such budget will take precedence
over the provisions of Sections 3.1 and 3.2 above.

4.

OWNERSHIP AND USE OF DIGITAL COPIES AND SERVICES

4.1
Copyright Status. The Parties understand that the Selected Content may include some
works that will be treated hereunder as public domain works and some works that will be treated
hereunder as in-copyright works. Both Google and University agree and intend to perform this
Agreement in compliance with copyright law. Each Party will be responsible for the determination of how
to treat a work for each jurisdiction at its sole discretion. Notwithstanding such determination, if either
Party receives a written request from a person or entity requesting to discontinue the display or use of
any Digitized Selected Content, such Party will promptly notify and forward such request to the other
Party and both Parties will comply with the request or demand so long as each Party determines that the
person or entity making the request is the copyright holder or has apparent authority to act on behalf of
the copyright holder. In addition, Google will implement processes whereby any person or entity can
request Google not to Digitize any Available Content or to cease the display or use of any Digitized
Selected Content which Google will comply with so long as Google determines that the person or entity
making the request is the copyright holder or has apparent authority to act on behalf of the copyright
holder.
4.1.1. With the exception of specific cases, as addressed in Section 4.1 above, University views
all U.S. government documents (Federal and State) as public domain and will provide open access to
those titles in the University Digital Copy. Google will provide the University with the complete Digitized
version of these wOrks in the University Digital Copy (so long as such works are Digitized by Google),
regardless of how Google elects to treats them.
4.2
Ownership and use of Google Digital Copy. Neither University nor Google shall have any
ownership or license rights to the Available Content that is Digitized (i.e., to the materials underlying the
digitization process), except where University already owns such rights. As between Google and
University and subject to the provisions in this Section 4, Google shall own all rights, title, and interest in
and to its copy ofthe Google Digital Copy.
G0091e use of Google Digital Copy. Subject to the restrictions set forth herein, Google
4.3
may use the Google Digital Copy. in whole or in part at Google's sole discretion, as part of the Google
Services. To the extent portions of the Google Digital Copy are either in the public domain or where
G0091e has otherwise obtained authorization, Google shall have the right, in its sole discretion, among
other things, to (a) index the full text or content, (b) serve and display full-sized digital images
corresponding to those portions, (c) make available full text of content for printing and/or download, and
(d) make copies of such portions of the Google Digital Copy and provide, license, or sell such copies
(including, without limitation, to its syndication partners). For all other portions of the Google Digital Copy,
Google may index the full text or content but may serve and display such content only in compliance with
copyright law. In the event that Google has received a license or other permission from the applicable

GOOGLE CONFIDENTIAL

4

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copyright holder to use in-copyright works in the Google Digital Copy, Google may use those works in any
manner permitted under the terms of such license,
4.4
Security and Privacy Regarding Go09le's Use of the Go091e Digital Copy, Google shall
implement commercially reasonable technological measures (e,g., through use of the robots.txt protocol)
to restrict automated access to any portion of the Google Digital Copy that is in-copyright. In addition,
Google shall maintain ,on its website a privacy policy that governs collection and use of information that
Google obtains from End Users.
4.5
Ownership and Control of G0091e Services. As between the Parties, the Google
Services and all content therein are, and at all times will remain the exclusive property of Google or its
partners; nothing in this Agreement implies any transfer to University of any ownership interest in the
Google Services. University acknowledges and agrees that Google retains control of the Google
Services, and that the design, layou~ content, functions and features of the Google Services are at
Google's discretion. Notwithstanding anything to the contrary in this Agreement, Goegle is not required to
make any or all of the Google Digital Copy available through the Google Services.
4.6
Hosted Solution. During the Term, Google will provide searchable access to the Google
Digital Copy at no charge to University and its patrons, researchers and staff via a website that will be
hosted by Google (the "Hosted Solution"). The design, layout, content, functions and features of the
Hosted Solution will be determined by Google with consideration of feedback from Go09le's library
partners that receive a Hosted Solution.
4.7
University Digital Copy. Google shall provide the University with access to download one
copy of the University Digital Copy in a timeframe mutually agreed by the Parties. Unless otherwise
agreed by the Parties in writing, the "University Digital Copy" means a copy of the Selected Content that
is Digitized by Google consisting of (a) a set of image and OCR files, (b) associated meta-information
about the files such as which image files correspond to that Digitized work, and (c) the logical order of
those image files. Google shall provide the University Digital Copy via a network connection, or in any
other manner mutually agreed upon by the Parties. In addition Google will provide the University with the
ability to sample the files for fifty (50) Digitized works per quarter to assess quality. Google agrees that the
quality of files provided to University in the University Digital Copy will be substantially similar to the
quality of files provided to any other library with which Google has an agreement as of the Effective Date
concerning Digitization by Google of content from that library. Notwithstanding anything to the contrary
herein, Google may withhold any works in dispute from the University Digital Copy and the University will
delete any such works that were previously provided to University as part of the University Digital Copy.
4.8
Ownership and use of University Digital Copy. Neither University nor Google shall have
any ownership or license rights to the Available Content that is digitized through this Agreement (i,e., to
the materials underlying the digitizalion process), except where University already has such rights. As
betvveen Google and University and subject to the restrictions in this Section 4, University shall own all
rights, title, and interest to the University Digital Copy. Without limiting the foregOing, University shall not
display or otherwise use the University Digital Copy except as expressly permitted in this Agreement.
4.9 Use of University Digital Copy on University Website. University shall have the right to use
the University Digital Copy, in whole or in part at University's sole discretion, subject to copyright law, as
part of services offered openly on University's website and internally for research, scholarly and academic
purposes. University may not charge, receive payment or other consideration for the University Digital
Copy in connection with UniverSity's website. University agrees that to the extent it makes any portion of
the University Digital Copy publicly available, that it will identify the works, in a statement on the
applicable web page or other access point, as "Digitized by Google" or in a substantially similar manner.
University shall implement reasonable technological measures (e.g., through use of the robots.txt

GOOGLE CONFIDENTIAL

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protocol) to restrict automated access to any portion of the University Digital Copy or the portions of the
University website on which any portion of the University Digital Copy is available. University shall also
make reasonable efforts (including but not limited to restrictions placed in University's online terms and
conditions goveming the use of its website) prevent third parties from (a) downloading or otherwise
obtaining any portion of the University Digital Copy for commercial purposes, (b) redistributing any
portions of the University Digital Copy, or (c) automated and systematic downloading from its website
image files from the University Digital Copy. University shall develop methods and systems for ensuring
that substantial portions of the University Digital Copy are not downloaded from the services offered on
University's website or otherwise disseminated to the public at large. University shall also implement
security and handling procedures for the University Digital Copy which procedures shall be mutually
agreed by the Parties. Except as expressly allowed herein, University will not provide (in whole or in
part), license, or sell the University Digital Copy to any third party.
4.10
Contribution of Un iversitv Digital Copy. Subject to the terms of this Section 4.10,
University shall have the right to contribute the University Digital Copy to a central depository of digital
works hosted by a Member Library. Prior to the provision of the University Digital Copy to any such
Member Library, Google must have entered into a written agreement with the hosting Member Library
and each Member Library that will have access to the University Digital Copy that (i) limits the use of the
University Digital Copy to non-commercial research, scholarly and academic purposes consistent with the
requirements of copyright law, (ii) requires the Member Library responsible for hosting the University
Digital Copy to implement reasonable technological measures (e.g., through use of the robots. txt
protocol) to restrict automated access to any portion of the University Digital Copy or the portions of the
website where the University Digital Copy is available, (iii) requires the Member Library make reasonable
efforts (including but not limited to restrictions placed in online terms and conditions governing the use of
the digital works) to prevent third parties from (a) downloading or otherwise obtaining any portion of the
University Digital Copy for commercial purposes, (b) redistributing any portions of the University Digital
Copy, or (c) automated and systematic downloading from its website image files from the University
Digital Copy, (iv) prohibits the Member Library from redistributing any portion of the University Digital
Copy without first obtaining the prior written consent of Google, (v) provides an indemnity to Google for
the Member Library's use of the Selected Content, and (vii) requires the Member Library to identify the
works in the University Digital Copy, in a statement on the applicable web page or other access pOint, as
"Digitized by Googlen or in a substantially similar manner.

5.

ACCESS. AUTHORIZATION AND SUPPORT

5.1
Access. Google shall have the right to access Selected Content during University
business/staff hours as required to exercise its rights and perform its obligations hereunder. If requested
by Google, University shall provide Google with access to Selected Content outside of University
business hours provided that (i) University is able to provide such access and (ii) Google notifies
University at least two (2) days in advance of its intent to access such materials.
5.2
Authorization. The University program manager responsible for the Selected Content
involved in any Project Plan shall have authority to agree with Google on the time frames and procedures
(e.g., collection, conservation, and handling) aSSOCiated with that Selected Content. If Google in gOOd
faith believes that the time frames and procedures requested by the University program manager are
unreasonable, Google shall escalate the matter to the University administrative contact; in which case
Google, the University program manager, and the administrative contact shall meet to resolve the issue.
5.3
Support. Each Party shall appoint one person to serve as the administrative contact for
Google, should administrative questi.ons or issues arise during the course of this Agreement. This
administrative contact shall be available during regular business hours (9:00 a.m. to 5:00 p.m., Monday
through Friday) at a telephone number and e-mail address to be provided by each Party. Each Party
shall also appoint one person to serve as the technical contact for obtaining and regulating the use of the

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University Digital Copy. This technical contact shall be available during regular business hours at a
telephone number and e-mail address to be provided by University. Upon execution of this contract, both
Google and University shall identify these individuals in writing, which may be email.

6.

CONFIDENTIALITY

6.1
Confidentiality.
Disclosure of confidential and/or proprietary information disclosed
hereunder, including the existence and content of the Agreement and any information provided pursuant
to the Agreement, shall be governed by the confidentiality provisions of the Google Standard Mutual NonDisclosure Agreement, which has been executed by the Parties prior to or concurrently with this
Agreement, as of May 12, 2006 (the "NDA"). The confidentiality provisions of the NDA are hereby
incorporated by reference into this Agreement.
PRo Neither Party will issue any public announcement regarding the existence or content
6.2
of this Agreement without the other Party's prior written approval. Notwithstanding the foregoing, Google
may include University's Brand Features in a list that includes Google's other library partners and, with
University's prior written consent, in presentations, marketing materials, and customer lists. Upon
University's request, Google will furnish University with a sample of such usage.

7.

BRAND FEATURES

7.1
Ownership. Each Party shall own all right, title and interest relating to its Brand Features.
Some,
but
not
all
examples
of
Google
Brand
Features
are
located
at:
http://www.google.com/permissions/trademarks.html(or such other URLs Google may provide from time
to time). Except to the limited extent expressly provided in this Agreement, neither Party grants, and the
other Party shall not acquire, any right, title or interest (including, without limitation, any implied license) in
or to any Brand Features of the first Party; and all rights not expressly granted herein are deemed
withheld. All use by Google of University Brand Features (including any goodwill associated therewith)
shall inure to the benefit of University and all use by University of Google Brand Features (including any
goodwill associated therewith) shall inure to the benefit of Google. No Party shall challenge or assist
others to challenge the Brand Features of the other Party (except to protect such Party's rights with
respect to its own Brand Features) or the registration thereof by the other Party, nor shall either Party
attempt to register any Brand Features or domain names that are confusingly' similar to those of the other
Party.
7.2 License to University Brand Features. Subject to the terms and conditions of this
Agreement, University grants to Google a limited, nonexclusive and nonsublicensable license during the
Term to display those University Brand Features expressly authorized for use in this Agreement, solely for
the purposes expressly set forth herein. Notwithstanding anything to the contrary, University may revoke
the license granted herein to use University's Brand Features upon providing Google with written notice
thereof and a reasonable period of time to cease such usage.

8.

TERM AND TERMINATION

8.1
Term. This Agreement is effective as of the Effective Date and continues in full force and
effect for a period of six (6) years, unless earlier terminated as provided herein (the "Initial Term"). Upon
the expiration of the Initial Term, this Agreement shall automatically renew for additional one year terms
(each a "Renewal Term") unless either Party notifies the other Party to the contrary at least thirty (30)
days before the end of either the Initial Term or a Renewal Term. The "Term" of this Agreement shall
comprise the Initial Term and any Renewal Terms.

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8.2
Termination. Either Party may suspend performance and/or terminate this Agreement: (i)
if the other Party materially breaches any material term or condition of this Agreement and fails to cure
such breach within thirty (30) days after receiving written notice thereof; or (ii) if the other Party becomes
insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or
suffers or permits the commencement of any form of insolvency or receivership proceeding, or has any
petition under bankruptcy law filed against it, which petition is not dismissed within sixty (60) days of such
filing, or has a trustee, administrator or receiver apPointed for its business or assets or any part thereof.
In addition, Google may immediately suspend or terminate this Agreement if Google reasonably
determines that it is commercially impractical to continue performing its obligations in light of applicable
laws.
8.3 Effect of Expiration or Termination. Within thirty (30) days after expiration or termination of
this Agreement for any reason, each Party shall return to the other Party (or, at that Party's request,
destroy) any Confidential Information of that Party that is in its possession. The following sections survive
expiration or termination of this Agreement: 1, 4 (excluding Section 4.6), 6, 8, 9, 10, 11 and 12.

9.

WARRANTIES AND DISCLAIMER

9.1
Mutual Warranties. Each Party represents and warrants to the other that (i) it has full
power and authority to enter into this Agreement and to perform its obligations hereunder; and (ii) this
Agreement constitutes its valid and binding obligation, enforceable against it in accordance with its terms.
9.2
Disclaimer. THE WARRANTIES EXPLICITLY SET FORTH ABOVE ARE THE ONLY
WARRANTIES PROVIDED HEREIN AND ARE IN LIEU OF ALL OTHER WARRANTIES BY THE
PARTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SUBJECT MATTER OF.THIS
AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GOOGLE
SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING NON-INFRINGEMENT OF THIRD PARTY
INTELLECTUAL PROPERTY.

10.

INDEMNIFICATION.

10.1
By Google. Google shall defend University against any third party lawsuit or proceeding
brought against University based on or otherwise arising out of a claim that Google's use or distribution of
the Google Digital Copy constitutes a violation of that third party's copyrights. The foregoing
indemnification excludes any third party claim that relates to University's use or distribution of the
University Digital Copy. Google shall select counsel reasonably appropriate for such defense and shall
pay for all costs incurred by such counsel. In addition, Google shall pay any damage awards or
settlement costs that may be incurred. University may participate in the defense with counsel of its own
choice, at its own expense.
Bv University. University shall defend Google against any third party lawsuit or
10.2
proceeding that relates to University's use or distribution of the University Digital Copy, including without
limitation. any such use by a third party. University shall select counsel reasonably appropriate for such
defense and shall pay for all costs incurred by such counsel. In addition, University shall pay any
damage awards or settlement costs that may be incurred. GoogJe may participate in the defense with
counsel of its own choice, at its own expense.
10.3
General. Indemnification provided under Sections 10.1 and 10.2 shall be limited to (a)
payment by the indemnifying party ("Indemnitor") of all damages and costs finally awarded for such
claim, or (b) settlement costs approved in writing by the Indemnitor. The foregoing obligations shall exist

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only if the party seeking indemnification ("Indemnitee"): (i) promptly notifies the Indemnitor of such claim,
(ii) provides the Indemnitor with reasonable information, assistance and cooperation in defending the
lawsuit or proceeding, and (iii) gives the Indemnitor full control and sole authority over the defense and
settlement of such claim. The Indemnitee may join in defense with counsel of its choice at its own
expense. The Indemnitor shall only reimburse the Indemnitee for expenses incurred by the Indemnitee
with the Indemnitor's prior written approval.

11.

LIMITATION OF LIABILITY

EXCEPT FOR DAMAGES ARISING FROM BREACH OF SECTION 6 (CONFIDENTIALITY) OR
INDEMNIFICATION PAYMENT OBLIGATIONS TO THIRD PARTIES UNDER SECTION 10, (A) IN NO
EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR ANY FORM OF
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM
ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT, WHETHER BASED
ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER
OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND
(B) EACH PARTY'S LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO TEN THOUSAND
DOLLARS ($10,000). The Parties agree that (i) the mutual agreements made in this Section 11 reflect a
reasonable allocation of risk, and (ii) that each party would not enter into the Agreement without these
limitations on liability.

12.

GENERAL PROVISIONS

12.1
No Obligation. Notwithstanding the foregoing, Google shall have no obligation to digitize
any portion of the Available Content nor to use any portion of the Google Digital Copy as part of the
Google Services. University shall not be obligated to participate in any Project Plan to the extent
University does not have sufficient funds to perform its budgeted obligations under that Project Plan.
Furthermore, notwithstanding anything in this Agreement to the contrary, if Google determines, at its sole
discretion, not to digitize some or all Selected Content in connection with one or more specific Projects,
whether due to cost issues, conservation concems or otherwise, Google shall have no obligation to the
University with respect to digitizing or delivering the University Digital Copy with respect to such Selected
Content.
12.2
Miscellaneous. Neither Party may assign any of its rights or delegate any of its duties
under this Agreementwithout the prior written consent of the other Party, which shall not unreasonably be
withheld, except that either Party may assign its rights and delegate its duties under this Agreement upon
written notice to the other Party to a division or an affiliate thereof (that Is not a competitor of the nonassigning Party), provided such division or affiliate agrees to be bound by all of the terms hereof; and
provided further that Google may assign this Agreement without consent to a successor-in-interest in
connection with a merger or the sale of all or substantially all of its assets. Any attempted assignment,
delegation or transfer in derogation hereof shall be null and void. This Agreement shall be binding upon
the successors and permitted assigns of both Parties. Unless provided for to the contrary in this
Agreement, any and all notices or other communications or deliveries required or permitted to be made
under this Agreement shall be sent (a) if to University at the address identified above and (b) if to Google
to such address as provided at www.google.com/corporate/address.htmlor as otherwise provided in
writing for such notice purposes. A second copy of every notice to Google shall be sent to the same
address, "Attn: Legal Dept." Notice shall be deemed received (i) upon receipt when delivered personally,
(ii) upon written verification of receipt from overnight courier, (iii) upon verification of receipt of registered
or certified mail or (iv) upon verification of receipt via facsimile, provided that such notice is also sent
simultaneously via first class mail. Contact information shall be updated in writing as necessary to ensure
that each Party has current information regarding all such contacts. The Parties hereto are and shall
remain independent contractors, and nothing herein shall be deemed to create an agency, partnership, or
joint venture between the Parties hereto. This Agreement does not affect any right that either Party would
have had, or shall have, independent of the Agreement under applicable law. Neither Party shall be liable
for failing or delaying performance of its obligations resulting from any condition beyond its reasonable

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control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other
acts of God, labor conditions, power failures, and Intemet disturbances. If any provision of this
Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that
provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and remain enforceable between the Parties. The failure of either
Party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such
breach or a waiver of future breaches. No provision of this Agreement is intended to confer any rights,
benefits, remedies, obligations, or liabilities hereunder upon any person or entity other than the Parties
and their respective successors and assigns. The section and paragraph headings used in this
Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this
Agreement. This Agreement sets .forth the entire understanding and agreement between the Parties and
may be amended only in a writing Signed by both Parties. To the extent that it does not waive the
sovereign immunity of the University, this Agreement shail be governed by the laws of the State of
California, without regard to its principles of conflicts of law. Any litigation hereunder shall be brought in
any state or federal court of competent jurisdiction in Santa Clara County, California; the Parties agree
that venue shall be proper in, and consent to the personal jurisdiction of, such courts. This is not a waiver
of personal service. This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original and ail of which, when taken together, shall constitute one and the same
instrument.

[Rest of page left intentionally blank.j

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IN WITNESS WHEREOF, this Agreement has been executed by persons duly authorized as of the
"Effective Date", which shall be the date written by Google below.

t'i .. ~ ~ ? ___;::>
:

Google

~

~

DAVID EUN
'tic riel'H",. COl/tanl Partn8t8hlpa
~ ja
Print Nam~~e. Inc.
By'.

University: Board of Regents of the University of

;~~~'¥iJj
Print Name: bA",fI.tn,t.,.
Title:

Title:

lO-06-06P12:12 RCVD
Date:

Date:

1)1(.; ~

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(.,fhtpl. GLL.DiC.

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[Signature Page to Cooperative Agreement]

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COOPERATIVE AGREEMENT
This COOPERATIVE AGREEMENT (the "Agreemenr) is entered Into by and between Googie Inc" a
Delaware corporation with offices at 1600 Amphitheatre Parkway, Mountain View, California 94043
(.~"), and The Rector and Visitors of the University of Virginia, a state-supported institution of higher
education and agency of the Commonwealth of Virginia located in Charlottesville, Virginia ("UnlverslW'),
and is effective as of the date of the last signature below (the "Effective Date"). Google and the University
are sometimes referred to hereinafter individually as a "f!!!:tt and collectively as the ·Partles·.

RECITALS
WHEREAS, University is a leading academic institution and has amassed an enormous collectlon of
works in various media;
WHEREAS, Google provides the public with access to web pages on the Internet, among other products
and services;
WHEREAS, Google and the University share a mutual interest in making information available to the
public; and
WHEREAS, Google will digitize works from the University collectlon to include them In G0091e'S services,
and provide access to the digitized works to the University as described herein.
NOW THEREFORE, in consideration of the mutual covenants set forth herein, G0091e and University
hereby agree as follows:
DEFINITIONS

1,

DEFINJIlONS. Capitalized terms will have the meanings set forth below:

1.1
"Available Content" means the University print collection as Identified by Google and the
University. Without limiting the foregoing. "Available Content" also includes University Digital Content

1.2
"Brand Features· means the trade names, trademarks, service marks. logos, domain names, and
other distinctlve brand features of each Party, respectively, as secured by such Party from time to time.
1.3
"DIgitize" means to convert content from a tangible, analog form into a digital electronic
representation of that content. "Digitizatlon", 'Dlgitlzlng" and "Digitized" shall have corresponding
meanings.

1.4

"End User" means a person that accesses or uses the Google Services.

1.5
"GoOQle Dmltal Copy' means a digital copy retained by Google of the Selected Content that is
Digitized by Google.

1.6
"GoOQle Services" means Google's products and services that are accessible through and
otherwise provided by various computer and electronic technologies, networks (syndicated and
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otherwise) and systems, including without limitation, mobile wireless services and Intemet-based services
accessible through the Google Sites and any Google syndicatIOn partner sites.
1.7
"Google Sile" means any web site located at a Google-owned domain, Including all subdomalns
and directories thereof, and all successor sites thereto.
1.8

"Hosted Solution" shall have the meaning set forth In Section 4.6.

1.9

"Initial Term" shall have the meaning set forth in Section 8.1.

1.10

·University Digital Copy" shall heve the meaning set forth In Section 4.7.

1.11
·Unlversity Digital Content" means content that the University of Virginia Library has in Its
possession In digitized form that the Library Is authorized, as determined by the Library in its sole
discretion to share with Google.
1.12
·Uniyersity of Virginia Library' means the comprehensive libraries of The University of Virginia not
including Law, Darden or Health SCiences unless the Parties expressly agree to include such libraries by
a written addendum to this Agreement
1.13

·Prolect" means a project for digitizing certain Selected Content.

1.14
·PrQject Plan" means a written plan for implementing a Project. The Project Plan shall include the
following: (1) timetable for Digitizing the Selected Content, (2) Instructions by University regarding how
the Selected Content is to be collected and returned by Google; (3) material handling processes for the
Selected Content, (4) if required, the amount of time available to University for performing conservation
efforts; (5) the amount of time available to Google from receipt of the Selected Content until it is due to be
retumed to University; and (6) a budget for the Project.
1.15

"Renewal Term" shall have the meaning set forth in Section 8.1.

1.16 ·Selected Content" means the portion of the Available Content that Google desires to Digitize or
Incorporate Into the Google Services, both collectively and Its component parts, Including any and all
other works of authorship included therein.
1.17

"Term" shall have the meaning set forth In Section 8.1.

2.

DIGITIZATION OPERATIONS,

2.1
Identifying and ColiecUng Content to be Digitized. The Parties shall in good faith identify
Available Content that Goqgle may elect to Digitize; provided that the University has agreed to commit all
circulating volumes from the University of Virginia Library system to the Digltizatlon efforts under this
Agreement. The Parties shall cooperate in good faith and with diligence to develop a timetable for
completing the Project Plan for Digitizing the Selected Content.

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2.2
Collecting the Selected Content. University shall be responsible for locating~ pulling and moving
the Selected Content to a designated loCation at the University facility as well as re-shelving the Selected
Content when the Dlgltization Is complete. Upon commencement of a Project, University shall perfonn
any conservation afforts that the Parties determine are required for the associated Selected Content. On
a roiling basis, as this conservation effort Is completed, University shall provide the conserved Selected
Content to Google for Digitizing.
2.3
Transporting and Storing !he Selected Content. Google will remove the Selected Content from
University premises to perfonn Dlgltlzatlon In facilities controlled by Google. Unlvarslty agrees that the
Selected Content may be transported to one or more DiglUzatlon facilities detennlned by Google. Google
will provide the University with the address of and a reasonable opportunity to Inspect all Dlgltlzation
facilities subject to Google's reasonable approval and University's compliance with all of Google's polic/es
and procedures applicable to visits to Dlgltlzation facilitles. Google will provide and be responsible for
commercially reasonable transport methods and temporary storage areas. All risk of loss, damage or
destruction of materials will lie with Google from the lime that Google accepts possession of the materials
until such time as they are returned to the University on University premises; provided that University
agrees that Google's obligation will not exceed $5,000 for any given text and that Google's maximum
liability for any damage or loss to Selected Content In Google's custody resulting from a single Incident or
event Will not exceed five million dollars ($5,000,000). Google will carry reasonable sufflclent Insurance
with a reputable Independent provider approved by the University Insuring against the risk of loss,
damage, or destruction of materials entrusted to Google's custody, and will provide, at the University's
request, a certificate of insurance to the University naming the University as an addi60nal insured. In
general, Google will provide a transport method and temporary storage area that is reasonably clean, dry,
cool, free from Insects and other pests, protected from fire, and secure against theft and vandalism.
However, unless the University makes Google aware that specific materials require non-standard care,
transport, and processing and Google decides to go forward with dlgillzalion of such items, Google shall
have no responsibility to undertake special efforts to address unique or fragile conditions In Its transport
or handling of Individual Items. University will provide Google with a good failh estimate of the value of
any Selected Content approved for removal from University premises and will provide Goegle with an
itemized list of any such materials.
2.4
Digltjzlng 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 In Its sole
discretion detennine how best to Digitize the Selected Content. While the Selected Content Is within
Google's possession, Google shall use commercially reasonable efforts tq minimize damage to tha
Selected Content, Including handling the Selected Content In accordance with handling instructions set
forth In the Project Plan, if any.
2.5
Return of the Selected Content. Google shall return the Selected Content to the designated
location where Goegle obtained It in the like manner in which it was collected after Google completes
Digitizing the Selected Content.

3.

~

3.1
Costs paid by Unlversltv. In addition to costs mutually agreed upon by the Parties, University
shall ba responsible for the following costs: (a) those related to pulling and moving the Selected Content
to a designated location at the University facility as well as re-shelving the Selected Contant when the
Dlgltization Is complete, (b) those related to University employees and agents whose participation is
contemplated by this Agreement, (0) network bandwidth and data storage required by University to
receive all of the University Digital Copy (d) any conservation efforts that University elects to unde.rtake
on the Selected Contentprtor to Dlgltlzlhg, and (a) any barcodlng and associated data entry to barcode
the Selected Content deemed appropriate by the University; provided University understands that Goegle
will not bear the cost of barcodlng and that only works ihal arebarC(Jded may be Included as Selacted
Content.

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3.2
Costs borne by G0Q9le. In addition to costs mutually agreed upon by the parties, Google shall be
responsible for the following costs: (a) those related to Google employees whose participation is
contemplated by this Agreement, (b) hardware and software required to digitize the Selected Content, (c)
space required to digitize the Selected Content (to the extent not provided by University), (d)
transportation of Selected Content from the University facility where the Selected Content is normally kept
to a Google deSignated facility (to the extent not provided by University), and (e) those costs that Google
elects to Incur to address any legal and copyright Issues associated with Goggle's Dlgitlzatlon of Incopyright materials.
3.3
~. Notwithstanding the foregoing, Univer,;1ty and Google may jointly develop a budget for
each Project Plan, pursuant to which the Parties can allocate the cost of researching and identifying the
Selected Content, conducting conservation assessments, performing conservation work, and performing
any required copyright research and clearances. Any such budget, which is mutually approved and
authorized In writing, will take precedence over the proviSions of Sections 3.1 and 3.2 above.

4.

OWNERSHIP AND USE OF DIGITAL COPIES AND SERVICES

4.1
Copvrlght Status. The Parties under,;tand that the Selected Content may include some works that
will be treated hereunder as public domain works and some works that will be treated hereunder as Incopyright works. Both Google and University agree and Intend to perform this Agreement in compliance
with copyright law. EaCh Party will be responsible for the determination of how to treat a work for each
jurisdiction at Its sole discretion. Notwithstanding such determination, if either Party believes a work (or
portion thereof) should be treated as an in-copyright work in either the United States or another
jUrisdiction, and so notifies the other Party, then, within forty-elght (48) hours of such notice, such work (or
portion thereof) shall be treated as an in-copyright work for use in the relevant country. In addition,
Google will Implement processes whereby any person or entity can request Goggle not to Digitize any
Available Content or to cease the display or use of any Digitized Selected Content which Google will
comply with so long as Goggle determines that the person or entity making the request Is the copyright
holder or has apparent authority to act on behalf of the copyright holder.
4.2
OWnership and yse of Gooo!e Digital Copy. Neither University nor Google shall have any
ownership or license rights to the Available Content that is Digitized (i.e., 10 the materials underlying the
digltlzatlon process), except where University already owns such rights. As between Google and
University and subject to the provisions In this Section 4, Google shall own all rights, title, and Interest In
and to the Google Digital Copy.
4.3
Google use of Google Digital Copy. Subject to the restrictions set forth herein, Google may use
the Google Digital Copy, in whole or In part at Google's sole discretion, as part of the Google Services.
Google agrees thai to the extent that It or its successor,; use any Digl1lzed Selected Content In connection
with any Google Services, it shall provide a service at no cost to End Users (1) for both search and
display of search results and (2) for access to the display of the full text of public domain works contained
in the Digitized Selected Content. To the extent portions of the Google Digital Copy are either in the
public domain or where Google has otherwise obtaIned authorization, Goggle shall have the right, in its
sale discretion, among other things, to (a) Index the full text or content, (b) serve and display full-sized
digital images corresponding to those pOrtions, (c) make available full text of content for printing andlor
download, and (d) make copies of such portions of the Google Digital Copy and provide, license, or sell
such copies (Including, without limitation, to Its syndication partners). For all other portions ofthe Google
Digital Copy, Google may Index the full text or content but may not serve or display the fulf..slzed digital
Image or make available for printing, streaming andlor download the full content unless Google has
appropriate legal authority to do so; Google Instead may serve and display (1) an excerpt that Google
reasonably determines would constitute fair use under copyright law and (2) bibliographic (e.g., IIl1e,
author, date, etc) and other non-copyrlghted information. In the event that (3oogle has received a license
or other permission from the applicable copyright holder to use In-copyright works in the Google Digital
Copy, Google may use those works In any manner permitted under the terms of such license.
4.4
Security and Privacy Regarding Google.'s Use of the Googl~ Digital CODY. Google shall
implement commercially reasonable technological measures (e.g., through use of the robots.txt protocol)
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to restrict automated access to any portlon of the Google Digital Copy that is In-copyright. In addition,
Google shall maintain on its website a privacy policy that govems collection and use of Information thaI
Google obtains from End Users.
4.5
OWnership and Control of GOOale Services. As between the Parties, the Google Services and all
content therein' are, and at all times will remain the exclusive property of Goggle or Its partners; nothing in
this Agreement Implies any transfer to University of any ownership Interest In the Goggle Services.
University acknowledges and agrees that Goggle retains control of the Google Services, and that the
design, layout, content, functions and features of the Google Services are at Google's discretion.
Notwithstanding anything to the contrary In this Agreement, Google Is not required to make any or all of
the Google Digital Copy available through the Google Services.
Hosted Solution. During the Term. Google will provide searchable access to the Google Digital
4.6
Copy at no charge to University and its patrons, researchers and staff via a website that will be hosted by
Google (the "Hosted Solution"). The design, layout, content, functions and features of the Hosted
Solution will be determined by Google.
4.7
University Digital CopY. Google shall provide the University with access to download one copy of
the University Digital Copy In a timeframe mutually agreed by the parties. Unless otherwise agreed by
the parties In writing, the ·Unlverslty Digital Copy" means a copy of the Selected Content that is
Digitized by Google consisting of (a) a set of image and OCR files, (b) associated meta-information about
the files Including (I) bibliographic Information consisting of title and author of each Digitized work and (II)
which Image files correspond to that Digitized work, and (0) the logical order of those Image files. Google
shall provide the University Digital Copy via a network connection, or in any other manner mutually
agreed upon by the parties. In addition Goggle will provide the University with the ability to sample the
files for one hundred (100) Digitized works per quarter to assess quality. Google agrees that the quality of
files provided to University In the University Dlgitel Copy will be substantially similar to the quality of files
provided to any other library with which Google has an agreement as of the Effective Date concerning
Dlgltlzation by Google of content from that library. Notwithstanding anything to the contrary herein,
Google may withhold any works In dispute from the University Digital Copy and the University will delete
any such works thai were previously provided to University as pert of the University Digital Copy. For
avoidance of doubt, Google agrees to include In the University DIgital Copy a Digitized version of any
work that was provided by University to Google as Selected Content hereunder, so long as such Selected
Content is In the Public Domain and has been Digitized by Google either under this Agreement or from
sources other than University.
4.8
Ownership and Use of University Digital COPY. Neither University nor Goggle shall have any
ownership or license rlghts to the Available Content that Is Digitized through this Agreement (Le., to the
materials underlying the Dlgitlzatlon process), except where University already has such rlghts. As
between Google and University and subject to the restrlctlons In this Section 4, University shall own all
rights, title, and Interest to the UniVersity Digital Copy. Without IImltlng the foregoing, University shall not
display or otherwise use the University Dlgttat Copy except as expressly permitted In this Agreement.
4.9
Use of University Digital Copv on Unlversltv Website, University shall have the right to use the
University Dlgttal Copy. In whole or In part at University's sole discretion, subject to copyright law, as part
of services offered on University's websHe and Internally for research, scholarly and academic purposes.
University may not charge, receive payment or other consideretion for the University Digital Copy in
connection with University's website. University agreas that to the extent It makes any portion of the
University Digital Copy publicly available, that It will Identify the works, in a statement on a web page or
other access point to be mutually agreed to by the Parties, as 'Digitlzed by Google" or in a substantially
similar manner. Universityahallimplement technological measures (e.g., through use of the robots.txt
protocol) to restrict automated acc::ess to any portion of th. University Digital Copy or the portions of the
University website on which any portion of the University Digital Copy is available. University shall also
implement reasonable policies and procedures designed to prevent third parties from (a) downloading or
otherwise obtaining any. portlon of the UnlversJty Digital Copy for commercial purposes, (b) redistributing
any portions of the University DlgHal Copy other than portions of or discrete Individual texts from the
University Digital Copy that have been used for scholariy or research purposes and will be disseminated
in compliance with copyright law and as part of a scholarly project, WebsHe, or publication, or (c)
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automated and systematic downloading from Its website Image files from the University Digital Copy.
University shall develop methods and systems for ensuring that substantial portions of the University
DlgHal Copy are not downloaded from the services offered on University's website or otherwise
disseminated to the public at large. University shall also Implement security and handling procedures for
the University Digital Copy. The University will provide Google with a copy of Hs procedures and will
comply with any reasonable revision or addition recommended by Google.

4.10

Distribution of the Unlyersitv Digital CODY. University shall have the right to provide all or any
portion of public domain works contained In the University Digital Copy (a) to a library member of the
Digital Library Federation or (b) with Google's consent, to a library member of VIVA (The Virtual Library of
Virginia) (such consent not to be unreasonably withheld so long as the member library can evidence Its
compliance with the restrictions contained herein) (each recipient library Is referred to herein as a
"Recipient Library") for non-commerclal research, scholariy or academic purposes by the Recipient
Library and the faculty, students, scholars and staff authorized by the Recipient Library to access their
commercially licensed electronic informalion products; provided that each Recipient Library is subject to a
written agreement that (1) prohibits the Recipient Library from redistributing any portion of the University
Digital Copy without first obtaining !he prior written consent of Google, (2) makes Google an express third
party beneficiary of such agreement, (3) provides an Indemnity to Google for such Recipient Library's use
of the Selected Content subject to the applicable law of the stata or other jurisdiction for Recipient
libraries that are members of VIVA, (4) contains obligations and limitations at least as restrictive as the
restrictions on University set forth In Section 4 ..9, and (5) requires each Recipient Library, to the extent it
makes any portion of the University Digital Copy publicly available, to Identify the works, in a statement on
the applicable web page or other access point, as "Digitized by Google" or in a substantially similar
manner. University shall notify Google of each Recipient Library with which it makes an agreement
described In this Section. Excapt as expressly allowed herein, University will not share, provide, license,
or sell the University Digital Copy to any third party.

5.

ACCESS. AUTHORIZATION AND SUPPORT

5.1
~. Google shall have the right to reesonably access Selected Content during University
business/staff hours as required to exercise Its rights and perform its obligations hereunder. If requested
by Google, University shall provide Google with access to Selected Content outside of University
business hours provided that Google notify University at least two (2) days in advance of its Intent to
access such materials.
5.2
Authorization. The University program manager responsible for the Selected Content involved in
any Project Plan shail have authority to agree with Google on the time frames and procedures (e.g.,
collection, conservation, and handling) assoclated with that Selected Content. If Google in good faith
believes that the time frames and procedures requested by the University program manager are
unreasonable, Google shall escalate the matter to the University administrative contact: In which case
Google, the University program manager, and the administrative contact shall meet to resolve the issue.
No changes to the Project Plan or costs' allocation may be made without written authorization from !he
University Librarian.

.§.!.!JmQtt. University shall appoint one person to serve as the administrative contact for Goegle.
5.3
should administrative questions or issues arise during the course of this Agreement. This administrative
contact shall be available during regular University business hours (9:00 a.m. to 5:00 p.m., Monday
through Friday) at a telephone number and e-mail address to be provided by University. University shall
also appoint one perSon to serve as the technical contact for Google for obtaining and regulating the use
of the University Digital Copy. This technical contact shall be available during regular University business
hours at a telephone number and e-mail address to be provided by University. Upon execution of this
contract, both Googis and University shall identify these Individuals In writing, which may be email.

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CONFIDENTIALITY

6.1

Confidenllallty. Disclosure of confidential andlor proprietary Information disclosed hereunder,
including the existence and content of the Agreement and any information provided pursuant to the
Agreement, shall be governed by the confidentiality provisions of the Google Mutual Non-Disclosure
Agreement ("NDA"), which Is attached hereto as EXhibit A and Incorporated by reference to this
Agreement.

6.2
ffi. Neither Party will Issue any public announcement regarding the existence or conlent of this
Agreement without prior written approval of the other Party. NotwithstandIng the foregoing, Google may
Include University's Brand Features with prior written approval of the University Librarian In presentations,
marketing materials, and customer lists so long as Google first furnishes the University with speclfic
examples of such presentations, marketing materials, and customer lists and uses the University's Brand
Features only In a manner that Is essentially similar to such prior reviewed and approved uses.

7.

BRAND FEATURES

7.1
Ownership. Each Party shall own all right. title and Interest relating to its Brand Features. Some,
but
not
all
examples
of
Google
Brand
Features
are
located
at:
http://www.google.comtperrolssions/trademarks.html(or such other URLs Google may provide from lime
to lime). Except to the limited extent expressly provided In this Agreement, neither Party grants, and the
other Party shan not acquire, any right, title or Interest (including, without limitation, any implied license) in
or to any Brand Features of the first Party; and all rights not expressly granted herein are deemed
withheld. All use by Google of University Brand Features (Including any goodwill associated therewith)
. shall inure to the benefit of University and all use by UniversIty of Google Brand Features (Including any
goodwill associated therewith) shall Inure to the benefit of Google. No Party shall challenge or assist
others to challenge the Brand Features of the other Party (except to protect such Party's rights with
respect to Its own Brand Features) or the registration thereof by the other Party, nor shall either Party
attempt to register any Brand Features or domain names that are confusingly similar· to those of the other
Party.
7.2
Ucense 10 University Brand Features. Subject to the terms and conditions of this Agreement,
University grants to Google a limited, nonexclusive and nonsubllcensable license during the Term to
display those University Brand Features expressly authorized In writing for use In this Agreement, solely
for the purposes expressly set forth herein. NotwithstandIng anything to the contrary, University may
revoke the license granted herein to use University's Brand Features upon providing Google with written
notice thereof and a reasonable period of time to cease such usage.

8.

TERM AND TERMINATION

8.1
Iwm. This Agreement is effective as of the Effective Date and continues In full force and effect
for a period of six (6) years unless earlier terminated as provided herein (the "Initial Term"). Upon the
expiration of the Initial Term, this Agreement shall automaticelly renew for additional one year terms
(each a "Renewal Term") unless either Party notifies the other Party to the contrary al least thirty (30)
days before the end of either the Inillal Term or a Ren~1 Term. The "term" of this Agreement shall
comprise the Initial Term and any Renewal Terms.
8.2
Termination. Either Party may suspend performance and/or terminate this Agreement: (i) if the
other Party materially breaches any material term or condition of this Agreement and fails to cure such
breach within thirty (30) days aftar receiving written noUce thereot:or (II) if the other party becomes
insolvent or makes any assignment for the benafit of creditors or similar lraosfer evldanclng Insolvency, or
suffers or permits the commencement of any form of Insolvency or receivership proceeding, or has any
petition under bankruptcy law filed agaInst It, which petition Is not dismissed within sIxty (50) days of such
filing, or has a lru$tee, administrator or receiver appointed for Its bUsiness or assets or any part thereof.
In addition, Google may immediately suspend or terminate this Agreement if Google reasonably
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detemlnes that It is commercially impractical to continue perfomlng its obligations in light of applicable
laws.
8.3
Effect of Expiration or Temination. Within thirty (30) days after expiration or lemlnation of this
Agreement for any reason and subjeot to applicable law, each Party shall return to the other Party (or, al
that Party's request, destroy) any Confidential Infomatlon of that Party that is In its possession. The
follOWing sections survive expiration or temlnation of this Agreement 1, 4 (excluding Section 4.6), 6, 8, 9,
10,11 and 12.

9.

WARRANTIES AND DISCLAIMER

9.1
Mutual Warranties. Each Party represents and warrants to the other that (i) It has full power and
authority to enter into this Agreement and to perfom its obligations hereunder; and (ii) this Agreement
constitutes its valid and binding obligation, enforceable against it in accordance with Its terms.
9.2
Disclaimer.
THE WARRANTIES EXPLICITLY SET FORTH ABOVE ARE THE ONLY
WARRANTIES PROVIDED HEREIN AND ARE IN LIEU OF ALL OTHER WARRANTIES BY THE
PARTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SUBJECT MATIER OF THIS
AGREEMENT. WITHOUT LIMITING THE GENERAliTY OF THE FOREGOING, GOOGLE AND THE
UNIVERSITY SPECIFICALLY DISCLAIM ANY WARRANTY REGARDING NON·INFRINGEMENT OF
THIRD PARTY INTELLECTUAL PROPERTY.

10.

DEFENSE AND LEGAL RESPONSIBILmES.

10.1
Goegle shall defend, or al its option, settle any third party lawsuit or proceeding brought against
the University (or its Board of Visitors, employees' or agents') based on an allegation that Google's
actions under thIs Agreement violate that party's copyrights or other legal rights. The foregoing
indemnification and defense Includes any third party claims alleging that (a) the University's participation
In this Agreement and release of Selacted Content to Google for Dlgitlzation constitutes a violation of that
third party's copyrights and (b) Google's use or distribution of the Google Digital Copy constitutes a
violation of that third party's copyrights, but excludes any third party claim that relates to University's use
or distribution of the University Digital Copy. Mixed claims that include claims that relate to Universlly's
use or distribution of the University Digital Copy and claims covered by this Section shall not vitiate this
indemnification responsibility by Google on breach-of-contract grounds. Consistent with the requirements
of Virginia law, Google shall select counsel reasonably appropriate for such defense and shall pay for all
costs incurred by such counsel. In addition, Google shall pay any damage awards or settiement costs
thai may be Incurred solely in connection with such third party claims. University may participate in the
defense with counsel of lis own choice, at its own expense. Consistent with and subject to the
requirements of Virginia law, settiement of any claim against the University shall be subject to approval of
the University, which approval will not unreasonably be withheld, and to approval by the Governor of
Virginia and Attorney General of Virginia where required by state law, which approval the University shall
diligently seek.
10.2
Consistent with and subject to the requirements of Virginia law, University shall defend, or at its
option, settle any third party lawsuit brought against Google (its affiliates, employees or agents) or
proceeding ttiat relates to University's use or distribution of the University Digital Copy In violation of that
party's copyrights or other legal rights, including without limitation, any such use by a third party. The
University s.hall have the sole responsibility for defense of such actions and for payment of any attorney's
fees, damage awards or settlement costs that may be incurred solely as a result of the University's use or
distribution of its own Digital Copy. University agrees that Google may participate in the defense with
counsel of its own chOice, at its own expense. The foregoing shall not be Interpreted as a waiver of the
sovereign Immunity of the Commonwealth of Virginia, nor assumption by the University of any liability or
obligation for the acts or omissions of Google or for the acts or omissions of others contrary to slate law
goveming the University as an agency of the Commonwealth of Virginia.
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10.3
~. Responsibilities under Sections 10.1 and 10.2 shall be limited to (a) payment by the
responsible party of all damages and costs finally awarded for such claim, or (b) settlement costs
approved in writing by the responsible party. The foregoing obligations shall exist only If the party
seeking indemnification ("requesting party"): (i) promptly notifies the responsible party of such claim, (II)
provides the responsible party with reasonable information, assistance and cooperation in defending the
lawsuit or proceeding, and (III) gives the responsible party full control and sole authority over the defense
and settlement of such claim subject to applicable Jaw. The requesting party may join in defense with
counsel of its choice at its own expense. The responsible party shall only reimburse the requesting party
for expenses incurred by the requesting party with the responsible party's prior written approval.

11.

LIMITATION OF LIABILITY

EXCEPT FOR DAMAGES ARISING FROM BREACH OF SECTIONS 2.3, 6 (CONFIDENTIALITY) OR
PAYMENT OBLIGATIONS UNDER SECTION 10: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE
TO THE OTHER FOR LOST PROFITS OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND
WITH RESPECT TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND (B) EACH PARTY'S LIABILITY
UNDER THIS AGREEMENT SHALL BE LIMITED TO TEN THOUSAND DOLLARS ($10,QOO). THE
PARTIES AGREE THAT: (I) THE MUTUAL AGREEMENTS MADE IN THIS SECTION 11 REFLECT A
REASONABLE ALLOCATION OF RISK, AND (II) THAT EACH PARTY WOULD NOT ENTER INTO THE
AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.

12.

GENERAL PROVISIONS

12.1
NQ Obligation. Notwithstanding the foregoing, Google shall have no obligation to digitize any
portion of the Available Content or to use any portion of the Google Dlgltel Copy as part of the Google
Services. However, Google's decision to cease Dlgltization activities under this Agreement and thus fall to
provide the University with a University Digital Copy shall not be taken without prior consultation with the
University enabling the University to minimize investments In staff required under Section 5.3 of this
Agreement. Ukewlse, notwithstanding anything In this Agreement to the contrary, University shall not be
obligated to participate In the Dlgftlzatlon program described in this Agreement with respect to any or all
of the Available Content. However, University's decision not to participate In the Digltization program shall
not be made without prior consultation with Google enabling Google 10 minimize Investments in
operations required to perform the DigHization. Furthermore, notwithstanding anything In this Agreement
10 the contrary, if Google determln6$, at Its sole discretion, not to digitize some or all Selected Content in
connection with one or more specifiC Projects, whether due to cost Issues, conservation concems or
otherwise, Google shall have no obligation 10 the University with respect to digitizing or delivering the
University Digital Copy with respect to such Selected Content.
12.2
Assignment Neither Party may assign any of its rights or delegate any of Its duties under this
Agreement without the prior written consent of the other Party, which shall not unreasonably be withheld.

12.3

Continuity. This Agreement shall be binding upon the successors and permitted assigns of both

parties.

12.4 ~. Unless provided for to the contrary In this Agreement. any and all notices or other
communications or deliveries required or permitted to be made under this Agreement shall be sent (a) If
to University to the altenOon of the University Ubrarlan at the address Identified above and (b) if to Google
to such address as provided at www.google.comlcorporate.5!ddress.htmlor .as otherwise provided in
writing for such notice purposes. A second copy of every notice to Google shall be sent to the same
address, "Attn: Legel Dept" Notice shall be deemed received (I) upon receipt When delivered personally,
(II) upon written verification of receipt from ovemlght courier, (III) upon verification of receipt of registered
or certified mall or (Iv) upon verification of receipt via facsimile, provided thaI such notice Is also sent
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simultaneously via lim class mail. Contact Information shall be updated in writing as necessary to ensure
that each Party has current Information regarding all such contacts.
12.5 Independent Contractors. The parties hereto are and shall remain Independent contractors. and
nothing herein shall be d8fm1ed to create an agency, partnership. or Joint venture between the parties
hereto. this Agreement does not affect any right that either Party would haVe had, or shall have,
Independent oftha Aghlement under applicable law.

Mi"""',

12.6
Force
Neither Party shall be liable for failing or delaying performance of Its obligations
resulting from any COI'ldltlon beyond Its reasonable control, Including but not limited to, governmental
action, acts of terrorism. earthquake, lire. flood or other acts of God. labor conditions, power failures. and
Intemet disturbances.
12.7
Enforceability. If any prOvision of this Agreement shall be adjUdged by any court of competent
jurlsdlcllon to be unenforceable or Invalid, that provision shall be limned or eliminated to the minimum
extent necessary so that this Agreement shall otherwise remain In full force and effect and remain
enforceable between the parties.
12.8 Nro.WaIver in Event of Breaqh. The failure of either party to act in the event of a breach of this
Agreement bY the other shan not be deemed a waiver of such breach ora waiver of future breaches
12.9 Umitallgn of RightS. No provision of this Agreement Is intended to confer any rights. benefits,
remedlas, obligations, or liabilities hereunder upon any person or entity other than the Parties and their
respective suCoeSsors and assigns.
12.10 Headings. The section and paragraph headings used In this Agreement are Inserted for
convenience only and shaH not affect the meaning or Interpretation of this Agreement.
12.11 ComQ!ete!lE!SS!Amendmenl This Agreement seta forth the entire understanding and agreement
between iheparties and maybe amended only In a writing signed by both parties.
12.12 Coynterparts. this Agreement may be executed In one or more counterparts. each of which
shan be deemed ai'! orlgli'lai and al! of which, when taken together, shall constitute one and the same
Instrument.
l~ of~ left ,m.ntIonalJy blanlc.)

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IN WITNESS WHEREOF, this AgnJement has been executed by persons duly authorized as of the
"Effective Date", which shall be the data written by Google below.

~ta. ~ A'.
Print Na..ot\VID

EON

::>

~;:We~elL£e.

.

Z,.:

Print Name:

''\7Iee President, Content Partnerships

Tille:

Google, Inc.

Tille:

Date:

Date:

l.-d W. Saodridae
BDcaIive VICe Pnmdent and
Chief Operating Officer

(O/2°lot..P

11-08-06f05:27 RCVD
[SlgnBture " . to CoopfntJve Agreement}

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EXHIBIT A
NON-DISCLOSURE AGREEMENT
(attached)

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Coogle

Mutual Non-Disclosure Agreement
W 24Q4er'

This Mutual Non·Dlsclosure Agreement ("Agreement") Is made and entered
Into between Google Inc., for itself and its subsidiaries end affiliates
("Google"), and "Particlpanf identified billow. Individually referred to as a
·Party" and collectively referred to as the "Parties". The Partfes wfsh to
&xchange ConfidenUaJ Information (as deHned below In SectIon 2) for the
following PUrp08e{s): a) to evaluate whether to enter into a contemplated
business transaction; and b) if the Pallies enter into an agreement related
to such business tllllllillction, to fulfill each Party's oonfidentlsllty
obligations to the extent the terms set forth below are Incorporated therein
(the "PUrp08&"). The Parties have entered Into this Agreement to proteat
the confldentlallly of InformatiOn In accordance with the foIlowlng.terms:
1, The Effecttve Date of this Agreement Is O'T.~(" 1.0) ).,00 ~
2. In connection with the Pul]lOSe, a PartY may disclose certain Information
It considers confidential and/or proprietary ("Confidantlal Information") to
the other Party Including, but not limited to, tangible, Intangible, visual,
elactronlc, present, or future information such as: (a) trade secrets; (b)
financial Information. including pricing; (e) technical Information, Including
research, development, procedures, algorithms, data, deelgns, end know·
how; (d) bUSiness Information, including operations, planning, marketing
Interests, and products; (e) the terms of any agreement entered Into
between the Parties and the discussions, negotiatiOns and proposals
related thereto; and (f) information acquired during any facilities tours.
Conlldentlal Infonnation shall not Includ& the "Cooperative Agrasmanr
entered Into by the Parties; excapt that any diSclosure of the cooperetive
Agrasment by a Party wnt only be witt1 reasonable prior written notice to the
other Party to allow the Parties to cooperate on the timing and manner of
any disclosure In compliance with all applicable laws.
3. The Party receiving Confidential Information (a "Recipient") will only
have a duty to protect Confidential Information disclosed to It by the 01her
Party ("Discloserj: (a) If II Is clearty and conspICuously marked as
"confidential" or with a similar designation; (b) If It Is identified by the
Discloser as confidential and/or proprietary before, during, or promptly atter
presentation or communication; or (e) If It Is disclosed in a manner In which
the Discloser AlIIsonably communicated, or the RecIpIent shoUd RIIISOI1I1b1V
have understood under the circumstances, including without Ilmltallon those
described In Section 2 above, that the disclosure should be treated as
confidential, IIohether or not the speclflc designation "confldentiaJ" or any
simlar designatiOn Is used.
4. A Recipient will use the ConrJdentJal Information only for the Purpose
described above. A Recipient will use the same degree of care. but no less
than a reasonable degree of care, as the Recipient uses with relipect to Its
own Information of a similar nature to protect the Confidential IntormaJlon
and to prevent: (a) any use of Confidential Infoimallon In violation of this
agreement; and/or (b) communiCation of Confidentla/ InformatiOn to any
unautho~ third perties. Confldentfal Infontlallon may only be
disseminated to employees, dlreatOlS. agents or third perty oontracti:Jn! ot
Roclplant with a need to know provided, the Recipient &hal be responsible
for such pelllOll9 or contractor complying with the confidentiality provisions
01 this agreement.
5. Each PartY agrees that rt shall nOl dO the follOwing, excepl with the
advanced review and Wfittenapproval of the other PartY: (a) publicly Issue
or release any articles, advertising, publicity or other maUer announclng
thai the Parties are negotiating or have entered Into the "Cooperative
Agreemenf; or (b) make copies of documents containing ConHdentIaJ
Information except 8S may be naected by a Recipient's attorneys or
employees and subject to paragraph 4 above.
6. This Agreement Imposes no obligation upon a Recipient with respect to
Confldentlal Information that: (a) was known to the Recipient before recelpi
from the Discloser; (b) Is or becomes publicly available through no fault of
the Recipient, (e) Is rightfully received by the Recipient from a third partY
Without a duty of oonfldentiallty; (d) Is independently developed by the
Roclpient witt10ut a breach of this Agreement; (e) is dlsctoeed by the
Recipient with the Discloser's prior written approval; (f) Is required to be

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disclosed by ttle Virginia Freedom of Informallon Act; or (g) Is required to
be disclOSed by court order or other gowmmentai demand; provided
that, In the event that disclosure Is required by court order or other
governmental demand ("Process"), (n the Recipient shall Immediately
notify the Discloser of such Process; and (iI) the Recipient shall not
produce or dlacloss ConfIdential Information In response to the Process
unlass the DIscIos&r has: (a) requested prolectlon from the legal or
governmental authotity requiring the Process and such request has basn
dented, (b) consented In writing to the production or disclosure of the
Confidential Informallon In response to the Process, or (e) taken no
aellon to protect its Interest In the ConHdential InformatiOn within 14
business days after receipt of notice from the Recipient of its obligation
to produce or disclose Confidential InformatiOn In response to the
Process, or such shorter period as may be required by such Process. In
the event that disclosure Is required under the VIrginia Freedom of
Informallon PIJt (the "Act"). the recipient of ttle disclosure request will
notify the other Party as IIOOIl as reasonably possible and the Parties will
cooperate to determine the timing end maMer of any disclosure in
compliance with the rt!qulraments of the Act
7. EACH DISCLOSER WARRANTS THAT IT HAS THE RIGHT TO
DISCLOSE ITS CONFIDENTIAL INFORMATION. NO OTHER
WARRANTIES ARE MADE. AlL CONFIDENTiAl INFORMATION
DISCLOSED HEREUNDER IS PROVIDED "AS IS".
B. This Agreement shall remain In eHact untY ~ Is terminated by either
Party with thirtY (30) days prior written notlce. Notwithstanding the
foregoing. this Agreement shall 8urvlvs with respect to Confidential
Information that Is diSClOsed before the effeotlvs date of termlnallon.
9, Unless the Parties otherWise agree In wrtting, a RoclpienYs dUly to
protect Confidential Information expires live (5) years from the dete of
disclosure. A Raclplent, upon Discloser's written request. will promptiy
retum all Confidential Information raoelved from the Discloser, together
with aU copies, or certify in writing that all such Confldentlal Information
and copies thereof have been destroyed, Regardless 01 whether the
ConfIdential Information Is retumed or destroyed, the Raclpient may
retain an archival copy of the DIscloser's ConfIdential Information In the
possession of outside counsel of its own choosing for use solely in the
evant a dispute arises hereunder and only In connacllOn with such
dispute.
, O. This Agreem&nt imposes no obligation on a Party to exchange
Confidential Information, proceed with any business opportunity, or
purchase, sell, license, transfer or otherwise make use of any
technology, SeMces or products.
, 1. No Party acquires any intellectual propertY rights under this
Agreement (Including, but nollimltad to, patent, copyright, and trademark
rights) ellCaplthe lim~ed rights necessary to carry out the Purpose as set
forth In this Agrasm9l1t
,2. Each PartY acl<no\\iedges that damages for Improper dISClosure of
Confidential Information may be Irreparable; therefora, the Injured PartY
Is entitled to seek equitable rellal, Including inJuncllon and preliminary
inJunction. In addlilon to· all other remedies available to It.
130 This Agreement doss not create any agency or partnership
relationship. This Agreement will not be assignable or transferable by
PartICipant without the prior written consent of GoogIe.
14. This Agreement may be executed In two or mora Identical
counterparts, each of which shall be deemed to be an original and all of
which taken together ahall be deemed to constitute the agreement when
a duly authorized representatlvEl of each partY has $lgned the
countarpart.
15. This Agreement constitutes the entire agreement between the
parties with respeat to the subject matter hereof, and supersedes any
prior oral or written agreements, and all conlemporaneous oral
communications. All addHions or modifications to this Agreement must
be made In writing end must be signed by the Parties. Any IaHure to
enforl;e a provillion of this Agraement shall not constitute a waiver
thereof or of any other provision.
.

Participant:

By:
Name:

nUe;

k~~~t ·fVr~v"l\
Leonard W. Sandridge
Executive Vice President and
ClliefOpetating Officer

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HJ;tl)X %"()'22'6

AdcIr'eM:

1800 Amphlth&atre ParKway. MountaIn View. CA 94043

Addr_:
Date:

ChO.(IQ\-t,9JIII( VA 2.2q gl)

lQJllliw

(Rev. 032404)

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Case 1:05-cv-08136-DC Document 1053-3

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EXHIBIT 23
PART 2
(LIBRARY AGREEMENTS WITH THE NEW YORK
PUBLIC LIBRARY, THE UNITED STATES LIBRARY OF
CONGRESS, STANFORD UNIVERSITY, PRINCETON
UNIVERSITY, COLUMBIA UNIVERSITY, CORNELL
UNIVERSITY, AND HARVARD UNIVERSITY HAVE BEEN
FILED UNDER SEAL)

A-645
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 2 of 41

COOPERAT1VE AGREEMENT

This COOPERAWiF ,<'>,GREEMENT (the "Am:tlJ;fnnnf) tS entered into by' ~ll)d between 800gie
~{~c.< r:i De;a\ivan~~ c(;rporation \-vith offices at 1GOO AtnphUheatre PBrkv;a)l( rvrc:..~nt~J!r Vlev"I!\
Cajif()(t!it~ 84043 (Q~0.9!9.'''l. and The Universrtv of Texas at Austin, <:l state Bf!f:\ncy and ir.stitution
c-r h1gt~Br $dUC;:1t~O:1 organized under tr~a !avlS of the Stale of "rexas. fur and on tJ0ha~t of the
University UtxHi<'~s with itl" principal offices at 1 University Station 85400. Al;stin, T(.;xas 18712
("Unlver~;it¥"), Ew!·~l is dfocti\iB as of the iast date this Agreem.mt is s!gnetj by 'the parties (the
"f,;f.f,?.Q,tlv(~ Dat(~"), GODgle and University hml1iin arl1i sometimos mrerie(l to hereinafter individually
"',S a HP.~r.t{' and cdleGlivefy as the "2gJL~tma".
.

VJHEREAS, Ufi~'.i~rsity is a feaoing acadernlc instituton and has arnasse·d 8ll enorrncus c.o!lect1on
of w{)r~~s k1 vari~)~jS ;n~:.:dja i'ocated at various Un!versny Hbrar!;,;~s and re$earcl~ ce.:'\tefs;
.
INHEREAS., GOcg!e [-,wvide;; Hie pHbEc with access to web pages on the' htf3nlet. among O:hBf

WHER.f.iIS, O'){)91€ and the University share (; mutual interest in making :nrormation av,*ii~,b1e to
thr~

ptlb!ir.:;

(H)(~

WHEREAS, SU()iBf;r to P1e terms set iortrl herein, the Parties desire to enter into g (:{In·exciliSive
ag~f,)f:m1€ni ¥iher<,by GCC9ie \.\,Im (il~iitiw works from the University coilections to include; them in
Goog!e~s sf.nvk~£s'J and provide access to the di£ilHl.ed w·orks to the tJnlversity as df)scribed
herBin,

N()VV THEREF{)RE) in ccnsider-ation of the rnulu@i CGvenan~s set rotH: herein, Goc~gi~E: BGd

Unlwmdj herea,! ~~Qmf;

1.

~,s bIiD\f;S:

DEHNl"f'lONS, CapitalEzed tel':':,)::; wiB have the meanings set rOi1h beiow:

i, ~
"Av,;!)l519i§..Q>2nit'!nr rneans selections from the University Coil.eci;ons as idenUied by
Gocgle znd the UroivEJrsity. VVithQwt iimiting the fOrDgoing, "Available Contf,mt" aiso inciudes
Univmsity Digitai Content
j .2
"[;)mr:'rl..F.?:gth,ms" means the trade names, !ratiemar'Ks, service marks, loges, do,'nain
narnes, ami o~berdistinctive b'lilnd features d each Party, respectively, as secured by SUdl Party
'korn Hn'jr:~ to U ~
rn·e
.

'1.3

''Digitiz§" "leans tQcoilvert content from a tangibie. analog fo~m i:lto a digital eif#ronk;

fepresei1latio(i Of UH3.1 ccnti3nt. "Oi!;;itiz.ation", "Digitizing" and "Digitized" shali have: Gorr.,s~)onding
~1Ban!nfJs.

i.5

"~~mpk" Digital Coo;/"

th8t is Digitized by Go!)g!e,
1.0

mec!11S a ciif!itat copy

mta'ned by Goooie of the Sl?lec:!"l(j (jontstlt
.

'-'~~QQJlt~...$.§~rV1Gesi' rneal1s Googie~s prnQucts and servkx-::s that are accesBlb~€~ through

~~nd ot!'H:~n~'vl$r:~ pr{)'Jided bV various cornputer 8f'ld electr-onic teehnologle:s.~ net\:vorks. (sJ~ndlcate(j

;:md otherwise) ",rid systf:m~s. incll,dil1g without limitation, mobile WiI'818S~~ services andintwn"t·

GOOG05000367

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i. 7
V~;D()~:l~ !~tt~{ rneans any ~veb sit£:: located at. a (;(){)glf;-O~Vf1e(j dOrnaif\ inctu[Ht~g $1I
,:;uhdoma'l'ls and dirf':ctmies thereof. a;)(? ai'. successor sites thereto,
.

1,1 (]
UP!):;", 1,:2f§[l' meaflS "my iibrary (including any Hbrades affilietfJd or associate(? ~'iitrl any
tlnh'f)rSity or (;tller BdUC8ticnE)i ins;it;tion" oll'\er than Un;vers1ty) ',!,,'ii"! which Google: has an
~Igff.lf.wr.ent as of ti10 Effectiv~, D",te COfKemin9 Digltization 0)' Ooogle of content frorr; that library.

"EmlgLFlal}" means a written plan for Impiemen!!ng a Pr,)jf)ct Tn<;) Pfoj<;;ct Pian st',aH
hi' idk,;Ning: U} ti;n0taole for Digitizi;'lg the Selocted Content, ~2) instr~ic:tion$ by
University reg"mtng how the Selected Conient is to be cuilecied and ,'otu:-ned by G00g!e; {3)
materia] h'YH.iiif19 Pf(){;i.';sses for the Selected Content, (4,) if required, the 8mo,mt of time 8vagah!e
to Ur,jv€tsity ror peiicrm!ng conservatkm efforts; (fiJ tr!€ amount of time avai!:able to GOOr,le from
receipt of tr~e SeieGt.ed ('/.;.1ntent ~:flm it is due to be rettJrned to Unjversjty~ and (5 J a bt!dg~t for the
'1.12

incl'.)~je

~~

.

~ ,i4
"Sci(x:ted Cor,terr( means the porHqn of the Available Content tI'''''' ("-v)('le rlSSi'6'" t"
Digitize Of incorprgate into tr~e 800g1e S-e:\dces both coHecr;ve;y and~
~o;r;~~on;f:lt
inchJd;ng any' and clH o~r:e:' \}··jorks t)f atJ~horship included lherein.
1

'T(~f,n·

i;;

s!"dl h,N8 the meaning sot forth in Section 8,1,

"Uni'iefsit\f Co-il€-cticns" means those co!!ections of the U;liversitv o· Tex~Js
~Nhjch

'p;rt;

at Austin

mBy be administered by a University library, research center,'· or other dnivorsiiy

i ~~ 7
"Un~'J$11~Hj:..._g9Jj_st9.~.tQn.~,,·Pj,gJ~ELG.9.D1~,r.X'· rneans content that Un~:¥er$~ty ake~dy i1~~S in ~t$
pOStleS(lion in Digitized form, as of the Effective Date,

i ,18
"YniY§.E';jlv Dicitai CQilY" moans trw D;g;tized copy oj' !tlEl Seiecte.c Content as SPbcined
·;n Sec!;on 4,l,

1,l9
3CO';SS

"Unlver:l.lty' Utmi.ICi..£,atmns" m€,ans tile sum total of ail indi\llduals ~~mi o,g8rlizations th<lt
UnivwBi,y Caliectkms irnm UrliversHy Hbrary websites.
.
TERMS

2,1
Identifying amtGpih3ctlnq r,;gnl?DU9"P.~ ..Rj:Qi.nf.It.;j, The Parties siJaH ir; good T{<ltfl identify
A;milab!" C~)ntent that Gcogj~ rnay <"lee! to Digitize; prollid<:Ki th8t Un;versity i:1grElBS to c4mmi: no
felNB, U'lan one rn:ilion (1 ,OOf) ,0(0) \/ollJmes to tho Digilization effwts undm this Aceerrient Th.;;
P"rties .shf'll! cocpBraie in W){~d faith Hnd Wit11 dIHgence to determine t'll') "ale in which llnlvefs!ty
wii! pr(lvitb booy;£; (lfS~l~.~tl~d COt\tBl1t to Google to Dinitize and wiH develop a Hmt~t<,~ble for
wmp!oting o<lci"; PI'Oje<:l P;~m for Digi!izingSeieded Content University ,vm pmvide G{)~)~.,;!e with
rnetndstH tor eflch Selected Content ~{) bf) Digitized to the format specified by G(loglti prior to
GoaGie [)iwti,~;ng 8ny Selected Content. />..Iso. Unfven,ity .wili provide G,)o9le "vgl: ;on :lcl~ln;inw

. -Cf
GOOG05000368

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Filed 08/03/12 Page 4 of 41

sW.:h as an OCLe c~~H ntm1~)er fOf ~~i~ch text of lhe .AvaHabie Gcnt",nt as S{'iQri (.is reasonBbty
possible aftm ,he Effedlve Date and prier to the cornmencernent of Dlgitization eHoi'ls Und,N this
.';J;)ff'!>erl'1(3~t. GOGiJiB 'Nil! use such itientHier information for inlf)mai purposes anly,
.
2.2.gi;;il~!!,;timi..t)}r;!..f;?~'l1.~Klf;:j.{,~9D1ft.D\. UniverSity shall he responsible for locBtiflg. pulling ;;lnd
moving tho Sek'lGterj Con1.<"11\ to a desipnated location at thf! UniverSity facility where Google car>
~~cHect H, (~s tk/B'!:~ as !.:lter n::-she[ving the Selected l::-:ontenl ~vhen the C~igi·tizat~or't [:; co~p!ete, ~f
mgmBd tipot~ bV thO PaliiBS in a particuiaf Proiact Pian, the collection, puHinp, mcr.ling,: and reshulving l'urlcilons may 00 <lssigned to 8009;(2. Upon comrnenCBfnenr. of a P:o}ecL t)niversity
shaH Bt ,t> sale discmttc{l porform any conservation enorts, at its expense. tilat it ti8rern'1ines are
req,Ji~H! mKlh.:r u',):;;i!abie fo~ the Selectee Content prior to Digitizaiinn. On <l roil't1(l basis., as this
COnS(~i"V,,1tion ",lbrt i.li cQmpkted, Universit~· ~hall providE: the c(.\nsel'ved Seieci$(l Content to
Google [0, DirJttiz;ng.
.
,~ .;)
Lq~.?t!:~o. l.!'i) DiqltizaUor. Operation. GOf)~1ie wiH designate", location \Alb':"e the Selected
Content will be Dlglti2.0(5. GQog!~ shall pay for any (~nd 81i fees and costs assodateti witf} the use
of said space; University srlal! not be liable for any such fees and CQsts. Goog1e agrees thd Bach
Dlgltllotlon f8t:iUy E c<,:.r,t,o!s wi!!. at sH times, be reasonably ciean, dry, COOl, protedocj frrxn fire
,"nd secure agdnst (116ft ,mcl vandalism £:rlcl at no time shall smoking rx" permitted in any
Digitiwlion fac:iity. GOGgle personnel, agents, contractors and otl~ef representalives invoived in
lt1e D~g~Uzc;ticn and/or h<mdiing ef the Sdected Content will salisl'y and comply with standards
~Tlutua!ly c~~t1f8ed by the PsrUBs in any Pf(~€ct Pian. Unh/€~·sity agrees that (Jno{)ie fn8J~ r~~rnove

the Selected Ccntent frQrn UniversHy prefr:~ses tv perfonr: the D~g3ttzatjon ~n 'raciiilies contToHed b,/
G~~

.

2.4
QlgtizingYle Selgded Conten!. Subject 10 handiing constraints or ptoc(~dJres !~peGified
in a(;y Pmjec( Plan, Googie "Ilall inlts sole discretion determine flOW (;est b D1rJitize the Seledml
Content V','hile ine Selected Cor;!ent is within Googis's ;:lossesstofl. Google shall "se
Gornme:c:aliy rSf.(sQrwb!e efforts to minimLm df.image to the Selected Content, induding handling
the S€~€~~te{"! Ccw~tent ~n accon:iance '..vith handHng instructfons set forth in the ti31Bvan~ Proj8r:t
Pian, if ~my. If the University establishes tl-Iat Sef-ecte<:i Content was not returno(i in sub~taritialiy
the same (;ondilion, Google will. at Google's option and the University'S ;>ute re!ll(ilGy, either
rep~<lcti the Se:i;1deo C<Jntsnt in Quostion or nay the University for ths repair or reoiacernant of
such Selected Gcmtefl! up to & 'maximum ~s may be specified in the relevant' Pmjf;ct Plar:
wovided that University awee:> U:()t Gonglc's nt)Egatior: will not exceed $1,000 for ,'my givqm text
and that G!.x)gk;';,; r:~mdmur;~ liabmty for any damage or Io..qs to Selec.teo Content in Google's
GUstody resultin;; frorn <; sinfikJ incident or tweni \·vili no! e)(cet~j one miliion da%rs ($1,QDQ,OCD).
Unless Fne UnlversHy rnakes Googfe aware that specific lnater;a!& requ!rn non.-stand~rd care~
lranspn'1, an,i lHocHRsing and Googie decides 10 go fOlward with D!gitizBtiofl {of si.lqh items,
GOiY~le s11a!i l'ia,m '10 f<:JspO!'1Sibil!ty to undertake special 0ffOft~; to ;'Jd,jf!!)SS \J:1ique
fragile
wndltiol1s b :t.~: tmnspor\ or handling of indiVidual [toms. Univ0rsity will rmwid€ Googie with a

or

gtXXl f"lith ('mtmate of J:0 V<l1Ue of any Solecteo Content approved for removal from Jrllver$ity
Or(!rnis0S $tid wm provide Google wiih an ~t$mized !1st of any such matedal.s.

;u;
FeUi'n of tilE Selectee Content. Goog[$ shall return the SeleGted Conl€n'c to the source
h'om Whi<~t1 (3G'..lgle bbtBined it and 11'1 the like manner in wheh it was coliecle.j Mtd' Goog1f)
cornrletfJs Digitizrng itlf? Selected Content Goog!e will use reasonaole commerda! $H<!r!s (0
f;mSUfH that Snieded C;.mtent is returned wit.hin len (10) tJusiness days of its beinG sdmned or
after A deh~n1'1.inL~tk)n is rna€:1e by GOGfJie 1hat Selected Content i}lliH not be ~Cf!nned.
NNwiths($nciing trte forepCi:IQ, Googleagrees tl1Bt no materials in " Project win
off the
Uni\fers~ty's ~iheh,.'E~s ftl; fon9f:)f n1an fi-ftoo:l (1f)) business. days qr for a longer per[od a~ rnay be
8pecif~ed 1n the reh~\.lant P:'ojeci Plan.

be

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Filed 08/03/12 Page 5 of 41

,9.9.§.T3&.

3.
~t-j

L~~!?t:U2t<ill1.1N L.l?1.lvor~ll'i. In addition to casts m,JlUHlIy agreed upon by H16 Pmties,
Unlwfsliy sbioi! 1',)0 ffisrxmsibleb' the followinn COSts: {a) those ,'elated hi i\x~atnp, ~d!ing and
moving the Sf)if)cted Contfmt to ilnd from the designated location at the University fadn~1 so thd
GOCgifi can GdieGt it as well 8S re-stl8'lving the Selected Content ,,-,>!hen the Digit:zatk'm is
compiate, {b) th"s8 relat<:"ld to University employe~s and a~lent$ whose paiik:l~1;:'\tlon is
conl8mpimiEKi by 1:1:5 Aqreemant, (e} l'1ePNork bancwiclth and data storagf~ f6quh:<6 by University
iD r8COiV0 ail 01: the Universilv D!g!tal Copv,. (d) any conservation efforts that Universilv ~eleGts to
""·'d"r+"'<(.> "" t',,·, <'::";''''!<>{j ':"or't:"'lt """')[';0 D'lgl"i"j'"'' GILl {". UCHv
.... ,
......
.1.t:;
'VI
t
!,E...,1!.\J{ "l'"
.. h''''''o",'r~'' .:j.\'.A
''ti "'''' ""'<"'v'I~')''''a' ('·'t'·,
..lCJ<:.
er:try tc barc()d<.~ ~he Si.~!t~ck~d Content.
~

~Qf·,...,

3.2

v.~

'~;-:"':',Gv'V'

'>.J

~.\.,.;

•

~G

\..~

"'J~,;I'-~'--'V:i:,,-->

,(;i!;!?,\?..l;:9.Gl!?...P.::l..Gg,Qfl!§ In a(1{iition to costs mutually Bgre8r! upon by the Fatties, (;ooglo
rcspcns~tr~~~ ro=-" the fOUOvii"ng Gcsts:
(s:) those relatec! h:; (300g·;$ ernployee~ V'.those

shall bf::

paftlcipat;r;1l i,S <;';:Ij'\tBmp!ated by this A~Jreem<~nt. (0) t)8rdw<;lf8 and scfiware (8Qu\red

to

Digitize
the Selected Content, (c) space required to Digitize the SeifJcted G0nient, and {d} transportation
,;If SeleCf,;;{i Conr.en!. fWIT! the desionared location at ine Univef'sity facility to a Goq;ic designated

facility to

perf(ln'~',

the DiQ'tizzticrl.

'

3,3
~hl9W!1~. Notvvi1rst<mding tr!e foregc~ng. University Bnd Google may jointly develop a
budget fei!' ~m{:h Project Pian. pursuant to whicil the Parties call allocate the C0St d researching
l'lnd kkmtifying the Sf):eded Content, conducting conservation asses.~~ments" pEirforming
';ons~fvz:l;or\ w,xi'" petiorrning .any required capyhght research and dearances, and rnetada!.a
devi:llopment as reqdred, Any such budget w~[i lake precedence Dvor the provisions ofSeciions
3,1 and :~.2 above 2nd wlH fJ0 effedive oniy aiter set krtll ln a writing Si[1nE;Q by both Par<ies.
4.

OWNERSHIP AND USE OF DiGITAL COPIES AND SERVICES.

4,i
~oDvriqht Sldus. TtKl Parties understand that ttle Selected Content may include sonH;
'.Norks Elflt wii) be tif:ated hemunder as public domain INotks and same works the! wHi bh il-eated
i~er{~\mder 1')S in-GopyMflr;[ works. Boitl Googie and University agree and intend tt> perform this
Agreement. in cc,n,pllance with copyright saw, Each Party will be respo!lsih!e for the deteirninatiofl
of ['lOW to tre?" (:; 'NOfk for each jurisdiction at lis 80le discretion. NOfNilhst.:mdihg suer!
cleterminatlon, if eithe;- Petty believes a 'work (or portion thel'ed} shoUd be treated ;:is an in-·:~opyriftlt 'vV;YK in oitr,er the United States or another jurisdiction, <:no so nottfies
other Party,
then, within fortY'$:~Flt (48) hours c·f sud, notice, Soch work (or portion themofj shdl be lrieated as
an ir;-coryr~f/..~t woek fQr use in the relevant ,::;otmtry. in addition, GNigle wm imp1ement processes
wl'1c~reby any pr;;'Son or enUy can request that Google not Digitize nny ,A,vaHabIE' Content or to
stop displaying 01' tJsing any Digitized SeieGted Content which Google wfl! comply with s6 !on~; as
Googlf; d",l,mninf;s thaI the person or enHty making the request is the copyright hok:!er Of has
ac!ud or app<:"en[ authority to act on beh<llf of (he copyright hakier,

t,.,

,Q~~{r.1Qf.§f.ljfU~!'ld use of GQ,ocl!'; Digital Copv. ,IA.s between Google an,1 University ,md
subject to the provisions in this Section 4, Goog!e sflall oY~n all l'l{lhts, title, ,'lnd interest in and to
the. Goo~l!e Ol,Jital Capy,
.

,t.2

4.3
QQD{lj§"!'!~,itgf...Gg.0fll@ Dig!tal CoPy. Subiecl 1.0 therestricHol'ls set fo:'lh he:ein~, (;oogl$
m{lY use the Goog!e Digit,,"! Copy, In wriole or in part at 000g10's soie discretion, slJbject to
copyright iaw,?s part of ti'le Goo9!e Services, Google ageees that to the ;;1:<;\e,,1 that it or lis
successors use r..,ny Dlg!t!zcr..i Selected Content in connection witrl any Google Service!), it shail
provide a s{w4k>~~ at nQ ~;()$t to End Users ('l)for both searcll and dispiay- or s~;,,:-cn r";$vlt~ anti (2)
fOf access to tn;;) display of tl:0 ful! text of public domain works contained ~n the DigHizedSeiected
Cnntem, To the extent portOllS oJ the Go{)gle Digital Copy are either in thi'; public dprnE!in or
Wh~~,{~ C:;(}Opli~ ;~<IS otherwise obt&ine{iautilOriz.atioll, Goonle shall hRve tim ,If,lht, iii ,fs sole
discretion, C)rnong dre;- things, to {a) index the fuil text or cQntf.!r1t (h} ;:,erve ;;\nd di~~play fi.ill~si7.,ed

digHc:J

~n~agos G:)cn~mpor)ditlg

(;OOt:;LS GOi\riDENTlf\L

tn

ihGSC

portlons r (c)

rr:~'~ke aV8nab~e

full

tt~>:.t

of content 'kcir' pdnr;.ng

4

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Filed 08/03/12 Page 6 of 41

anrl!or <~Gv"ninl'lrl, at"l(j (d) fY,<'JKe Goptes or such portions of the Google Di[Jital Gopy and: provide,
!:Gens,~, or 1M~l! suG!: Gopies (lm:luding, withcn.lt iirniii:\tion, to its syndict.,iion partners). Fad ail other
portions of th~l ()oogle Dj~lita! Copy, Gocgle may index trlC fu!l text or content but ;'r;~;y lj,{)t serve
or dispiBy the fUH;imd alrltal image or make aVBllable for printing, strem11ing am:liu!' downlowl
it,I" lUi! con1eni. ;.lnh:.,ss C;OODif::l hm, permission or iicense fl'Onl the copyt'fgm O'hTI0f' tb de so;
Go09:e ;n~,le<,!d m;,!y s~,ve and dispi<.1y {i:' an excerpt !hal Goo~Ji\" reasonably delennini::s would
,~ensii1ut;2. fai,' use under cupyright law ,:Inti (2) bibEographic (e.g. litle. author, date, etc,} and other
non ·copyri£lhted idonnatlon. In rrl6 event that Boogie has received a license or othet perrl'1issiot'l
from ihe applicable copyri,iht holder to w;e ffHX)p)lright works in ill,,; Gooc1e Dig.;!,"! Copy, Goog1<e
may use lrlose \NO'!'S. in any marmer p~mnitt€d ur:der the terms of suer, license.
.

Sec;Jritv ano Prj'/acy Regardlnfl..Qoog!e's U~fl oLli'l"'...G.'!,091f,.. Qigit81 Cop>,' G(lG~lie shail
irnpl~;rn<~nicorr;merGia!!y :>?f;150nable technological measures (e.g., tI1t()ugh liSe of the iobots.txt
p;atoGO!} to ,~>strk;r 8ulolTlF.lted aCCf!SS to any portion of the GOogie Digita! Copy that is incopyright In i~dditkm. Gong!e shaii main1ain on its website C1 privHcy po~icy the,t gO',rsms ¢(llisc!ion
and use <if inforril8,ion th,~( Coogle oi)!;'lins from ErKi Users.
.
4.4

4.5
QW.f.l~.[§.t!!2.9nd Controi cf Goo(ile :;iJ!!.Xices. As DHtween ttl€' Parties, the GGDgleSerJices
and .aii content thE,!'",!n me, and Cit ali times wili remHin the exclusive property of GOot111;; or its
partners; nothing in this .Agreement implies any transfer to University of any ownership interest in
the GooGie Sur'fices. University acknowledges and agrees that Go001e retains (;ontm( of the
Gt)Gg!f~ S'Hr'!icf:S, 2nd hat the design, layout, content, functions and features of the Googie
Sm'vices are a1 GOGg!a':~ disGretlcm, Notwithstanriircg any1hin~j 10 the contrary ,n this Agreement.
GOGgle !s n'0: mqu!,ed to mav;a any or 811 of the Googte Digital Copy available through the Googie
Services.

H.Q.§tQ~.:f~f&es..~. [~ur~ng g~e Tefr:·~:. GDog~e Vy'm prov~de searchable acces~) to ttl~ GO~'11e
CDPY at ~'JO ch):~rge tc University and to University Library patrons via a ':Nebstte th~t vv-Hi he
hosred by Coogle (HQsted Access") The deSign, layout, content, funct<ms 2nd h:;~)tlJ:es of
Hosted Aco.;,ss ;:<!j!; b(; dokl(mi"ed by Google but $wDstantiaHy simil"f tG that p,ovided bV Coogle
,0 any Oth", Uixa;,y as suei'l feat;Jres 0volwa during the Term.
.

4,6

D~fJ;h:j~

Ui1!v~x§.liv ,Diflital Coov. Unless other,vise agreed by the Parties in writing, Hw
'University Digit.,1 Copy" ",fifms the digitai copy of the Solected Contem that is Digitized b~{
Goog!n C{);1s;st!ng c{ (a) a l)et of imClge and OCR fiies, (b} associated me1a-infwnmlUOll ¢bout the
files ifl(;iud~nt1 Vbfiographlc infoIT!l3r.ion consisting of title ~nd ",uthor of eactl D!fj!tiL:ed ";<ork and
teGhnical inkmn;~tk:lfl consisting of It-Ie date of scanning the work, information abtxl1which imd{;e
flies corresponl:; If.; what Digitized work, and (0) a list ofw[)['ks that are siJpplied fer Dlg!tliatlon but
~~ot :actuEily r.Hg~tizerL

4. i'

4,7,1
GOOpiB <O<1P':leS k> provide to University access 10 one cOP\i of ail DigHiz.ediS~'lect<';d
Content that has beH,l "Successfuny Prooossed""Nithill thirty (30; days dtsr the S~lf,;cted Cont(-lnt
is DlgiHZ8ti, Dr in a i!im~ff8me mutualiy agreed by the Parties. Selected C{mtfmt k~ "SuctiessfuHy
Processed" when G{l~')~ll<~ determines it has satisfactorily £lone t:'ll'Ough all stBQes of Ooogle's
Digitlmtion, I)OS( p(Qcessing imd qU;;l!ity assuwnc() procedures, in additfon GQ(lgi€'ftili pwvide
the Univtll'Sity ;Nfth the abmty to sampla the trlos forl'.Ii') hundnad <ili1dfifly {250} Digltiz&d works
per tgJarter to t'i3SeSS quality, (joog!e Bgmesthat the quality of fifes provided to Uni\ler~ily in the
University Di91181 Copy 'NiH be swbslantiaily similar to (he quality erfite;; provided to any Other
Library. GZ,)Q{Ji~l ;;;hail pfCv;(je t.he UniV€fSily Dinilal Copy via a network connection,
in any
othe rn;~ll1nBr rnU1.i.K>l!y agreed upon by ;t,e Patties. Notwithstanding anything to th0: cGntrary
h(ln,!!f!, Grmglc: 1'f'c:YWithl1D!d any works .in dispute as set f01'tl1ill Snction 4. ~ fmrn the Unlvendy
Digital Cq:;Y' ~1:~d tr,e University wili <il$iel~ any S'J¢'!) works that were Im:,viol<sly r)!'(}v,deci to

0'

Ur~ivt!rs~ty a~~ p;:.~rt

of the Univf:Jfsity

D~giic:d

Copy.

.

4.B
!';[fi~}eISilip 2nd L'§G of Uni'ie:sitv.fJjg(!<lLJ,:qgy. As beivieen Goog!e and Uliivdrsity and
subj,1c.t to lh" n';S1riGtions in 'lhis S~JGhn 4 Uf1iversHyshall own· ail rights. t:t!(I, and iflhlr~tsllo the

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Filed 08/03/12 Page 7 of 41

Univ(-;rsity D~~~4a! Copy. VJtrhout nrnHinn the j=(gefjoing, Univers~ty Bha\! not (i~sp;:r::y or qtherv~lse
the Univershy D~g;t~~l Copy eXCt~pt as €xpressiy pennrtted ~n tt"tiS f~~lreernent

u~:;e

45U iJses by University Ubrary Patrons: (a) University Sh:1E L:i'<is t~1e fight to US(~ ti10
Un;v,,,,sity Digita~ Copy in whole Of in parl at University's sole dis';;retiull, in l:lGcorda!lce with
copyright !<,;w. as part of services offered to University Ubrl'lry Patrons; pro\lided lhat
Un~ve:-$ity n(:t charge Q:- r€c.eh.·. :g payrnent 0:- other consideration for such us~ of the
Un~\;~.:.:rsity Dig-ita; Copy. {b} Unh/efs~ty' nlay> tlovvaver, charge for s€;f'. .'ices· It prov~des that

buii<l upon the 0n~versity Digita! COPi. For example, University may Gha(r,if:~ University'
L~bfi.~ry Patrons for cGCBSS to ann{)tc.:~~ons prov~de.d

by professnrs ar";.c

scho~ats

eveb thouOh

th", oriGin",: WO,K di{Jili:::.ed by Googie will <iiways be accessible without a f",0, University
:n¢~y 3~BD r;hsffJe University t~brary Patrons to recover cOPY~:lg costs a<;tuaH~l tq~;uned In
servi!~~f 1hf,ir 11 eeels.

4.9.2 Fublic Access:
(s) Digitized by Google Reference. Unilfersity agrees to kif':,ltify the .vorks vJitl'lin the
University Di()ital Cnpy ihat it makes avaEable to the pubiic as "Oigi!<zed hy Goo.gie'· ir1 a
statem""l on <'J web pa(Je or other access point to be mutually zgreec lo b~i the Pi:lrl!ss, t:r
in 8 substantially siml!3: rnanner.
;
it) Auttlmat.eo Access. Udversity shaH irr.piement tecl1nological measums sliGh 8S the
mbots.!X! pwtf1coi or slmii8i' meaSLlres to nas.ttict automated access to sny porUml of the
Unlver:r;i!y Diqlial Copy or the portior.s of the University website on whiGi'! any portion of the
•
University Digital Copy is avBilat>!e.
Ie} Commercia! and Systl}matlc Downloading and Dlstrlbution. LJni\fers!ty shan also
make r8a~;(n8be ,,:lfor1S to prevent t!1!fG parties from (i) downioadjn~) 0, otherwise ~1btainin(
wo:k:> frem t'le Universily D~gilal Copy for commercial p~~rposes. (ii) con~m~:r'cial
md!str;~)Lition of worKS from the Unlversily D;gi1.31 Copy, or (iii) automated ,me systematic
jowniomgn~; (), dst,ibutJon to the public at large of substantial portions of the L)r.iversity
•
Digital Copy fmrn the services offered on University's WBbsitc.
{(j) Protecti.on for lntemai Archive. University sl'1@!i irnpfement secudv 8:ld 'handling
procedures hx the University Di~Jital Copy as mutually agreed by the Parties. Except as
expmssly ;:llioviec( hewin, university w:!l not sharH, provide, iiGense, or seil the Urdverslty
Di~1itBl Copy to any third party.

!;.10

Qistr~bt{lbn (,<j'

th§JJ;jYi?fsity Digital G.QPs-

4.in.1 DistrH:mtlon to libraries and Educational institutions: Subje{:llo lhc lirnilations
set Fort~~ hernin,
(ai Ur)ivers[;:y shaH ~lc.\je the riHht to distril)\Jte no more than ten percent (H)%) of public
timm'lin ,'v'iyk;:; horn the University Oi>tlital Copy to other iibr'aries Bnd e<ll.icatkmal in$iitutions
in a(;cord~'lnce vAin copyright law and in eBch case for non-commercia! rBseBrct;, :scholarly
Of ~c.g0€q1k:. p~3rp.O$es.
(o} Universit:,r she\! hav$ the ri£lh! to distribute all or any porl!ori (if lhe publio domain works
l~()ntaincd in H,e University Digit;;;l Copy to a library member of the O\Qita! Library
F(Ki€!'ctbn Of with GOO(llr;'s prior written GOI1Senl, to other insti!utior~s (each reCipient entity

is ;'derrcd to herein as a "Recipient Institution") for nOl'l-oomm<,'lr{;ial ,esearch, sCllolar!y 0;
acao<:Jmio purposes by the Rec~fJierlt instituHon and the faculty, stvder1ts: Sci101?Jsand staff
autho(zed by the Recipien1 institution to aeces" thelr cQtnmen::iaHy iker:sl:;ci qleGtwPlc

4,1Il.2 Limitations <}n R~cipjents o.f Distdbuted Copy:
•
(d! Contract with GQugle: Prior to any di$trib~ltion by University to;:t Re,;;itJier;t lristitutkm,

on

Goog;G find ti-~e ReG~p~ent 1nstitutlDt~~ rnust have entered H1lG a vb'tltten agreement
terrns
(~ccept;3i)le to Gcc<Ji.e govemin~j the use of the University DiQital Copy and that, ~)mong
other ihjn~Js~ prQ\"'~d$ ~~n inderrlnity to Goo-gle.
.
(c) Contract with Univu1'sity: In addition, University ::md F>;fJdpinnl instilLtitlrt rnl.lst enter

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jnt~.i (J

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written (lqreement UI8t
(A) »ronib!t;; that Recipient. lnstituti;;;n fro:n r(;!distdbuting wijj,(.,ut fj,-s\ cbt.$ining the

prior ~'vdHen consent of

GOO~$3BI

(B) makf;s Google an express U"jird parly beneficiary of SUCrE ;;)gmernent,

(C}

f>r~j\j1ijBs ~~n

im1ernnHy to (;0091e fh)fn t[le Recipient Institutfon for the R,.e-eipienl

lnstituti0n's use of (i,f;l University Di\,ilal Copy or part !hen;!of,
(0) Gcnidns knllations at least as restrictive as the resl:-icHons on Ur;i',lfJffilly SHt forth
!n Sect~cn 4.9)
(E) contains limitations on the use of the UniV0rsity Digital Copy as set forth in
clauses 4.10.1 (a} and Ib) ahove, if any, and
(F) mquires each Recipient lnstlttJion, to the m:t,ont it rfwkos [ifl)! p(ytiO!'
the
Universiiv O',J ita i Cepy pub!lciy avaUable, to identify the ,,·mrks as "Digitized by Goog!e" in a
$l.,;tr~rnfir',t on lhB appiicable web page Of ctlm~ aCGBS:; pont, or in 1') substantially slrnil8f

or

rn::-u-:r.er.

5. i
Accejili
Google ::.hail have ihe rignt io aGcess Selected Content during iJniversity
business/start h0",r~. as mquired to exercise its rights and perform its obHgBtions hereunder, !f
requeste(i by Gocgle, Univen,;ty shail provide Google with access to Selected C'..mtent {lutside ()f
University bur:,ineS$ h~)(.'f$ provicied tf~at Ooogle notify University at least two (2j o<-.:ys in !Oldvance

.of ;ts intent k~

j~~)~:coss

such rnatena]s.

5.2
bUoo('mfnn. The University program manage, responsb!e for the SeieC(E)(i- C{Jntent
,rlvojl/(ld h any Pmltx:t Plan shai! flave authority to agree with Googi6 on tMe time fra~1'l<iJs ;<Inc
orocedums {e.g .. w!i(cJei!Dn. conservatlorl, and handling} associ13ted witn that Selecterl'iContenL
if Google in good r"Xh tJelievf::~s that the time f;-ames and procedur\')s r8quested by the un~VSfsltv
()wgrarn n'Hi\;;a{;er are unreasonable, Google shaH escalate l!':,~ matter to the l;n;wmAy
administrative Gontact in which caS() Goog(e, the University pmgmm rr:all~~ger,8nd the
administrative comact shaH meet to resolve th[~ issue.
.
5.:1
.?h'P.p.~U E.ach party shall appoint on;;; person to serve <':8 the administrative CI)ntad for
the other, ~;hould a<lrninistrative questions or issues arise durinn the course of ,his ,iI,greernent
This administm1ivG contact shall be available during regular business hours (9:00 8.m:. to 5:00
p.m., Montl,,)! through Friday) at a tOioprlOne number w:d e-mail address 10 be provided by eccl'!
oarty. fiilch PZlrty shaii also ,,:ppoinl one person to serve as the techrhca.l contact for ihe:oli'!er for
obtaining f,nd regulding the lJS~; of the UniversiiV Digita! COPY' among Glher things. This kchrllcai
conlacl silt1:1 Ix) 3';ia~fubh during reguiar business hours at a telephope number arid e-maH
iKidress to be provided by eBch party. Upon execution of H1is conti'act, boit; G0og1e and
University s~la!! i,jentify theSf~ jndividu{liS ir wr:tli1£I, which may be ema:!.
.

6.

CONFlDENT1AUT'{,

0.1

Confidenha1itv. By virtue of this Agreement, each Party may have access to inf:orrnatian
of the other Party Wfl;ch iscotisldered confidenti",l and pr<lprietary', includkl~l pro<iuct plans,
CUSt0f110f lists, and propri.dary technology or methods ("Confidential lnformatkm").! whether
cHsclosed intangible or intcngible form. !tlforrnaHoil drsdosed in tangibLe form will be considered
C{)l'Iridentlai Information if it is marked as "Confitjentiai", lrJormatkm disclosed in htatl{f\ble fom)
wiil bf) consid(;'fI~n COnlij~f;ntiai lntormaUaf) ji the disclosing Party dearly in(licatr;.s that it is
rJ(mf!rj{~ntiai at th,," tim!: of disciosum.
5.2

Qt;1jggiJ.9!l§, E",,;t; Party shall exercise jhe same degree of oare, b.ut n,'l

k~$$

than"

reasoneb!e deF~e (lICarI:), 10 evn1d lhe pub!ieatio,"! or dissem1n~ltion of the Cohfidentid
iniormaHon pi th~'i other Party as ~t ·affords to its o\Nncoofi<ient:ai .inforrn<~tic,~ of a $irni!~lt' nature

"
I

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Filed 08/03/12 Page 9 of 41

whid1 it desires nnt to be published Of dissernim,,1ed The receiving hlrty {"Reclplenr'} :~flali not
!j;;8 CanfkiBnti;31 Information of the dlsC~0sin9 Party ("OisdQ$erV) except in cor;n;"ctiQ!\vdh ihis
A~lrf,,0rn{,nt ~l:Kj thi; matters conternplatBd hereby, The oblig~ltion of the parties not to' disc!OSE:
Codi~j&r,t;al inf(lr'(1;?tion S:JI-,ljV<:JS terrnir:et!'::m or cancellation or this Ag,eernent

6.3
~~~~~f:~~':tJgn:?. "This !\gri;;ern~n:t lmpcs0s r:{) c-bUgat~on upon a Recipient >lo'~/~th r~spect to
Codidt'mtif,l inbnm'ltiol: trwt: (a) was known to the Reclpier:t before receipt i'l'Orn the DisdasBr;
it} is or be~;Qnl<:}s Du;;lic!v available through no h).un of the Recipient; (e) is rlch,fHHv rBdeiwKl ;)y
th" Rec~pjent "rem '" third' pert)' 'Nithout e duty of confidentiality; (d} is lr1dElPOf1(:l~ntly devdioped b:,'
\J1B Redpl€:n~ wltl1nut a txe~Kh of this fs,greement; (e) is disciosed by U,s F<0cipientwlth the
Di"dos~""s pricr 'N,i:ten spp,'ovai; Gt If) IE> required to be disd(lseCi by npewtion Gj' iE!'tJ, Gl)Vrt order
{>r DH1er gQvernrnf.:·ntaf detr:flnt~ {'';Pn:~ce:ssw~; provided ~hat (i) U"te Recipient S~18~'~ ~(nrr:edjat~ty noU1),
:hs Disc~f,)SH :;;f sw::h Process; and {ii) the Hecipient shall ,jot pmdtJc,,) or discio,;e CnhndenUa!
:nfofmation in :i;)::;ponse to the Process unless the Discloser has: {ai req~msled pm!~JGlion from
;hs leW'll or 90vemmf~nt31 authority and such noCitlest has been derlied; (b) eCllsented in \.vriti.nq to
the pt()(bdior; or d$ClC$l.Ir~ of the Confidont.al lnio:miOtlon Hl response to ,he PrOC0i.1S; 0f (c)
taken no <'Ktkn to pwted it.$ :llt0rBS! in the Confldeniiai information wilhin 10 business days (Jff.ef
receipt Df ,mike by the Recipient of its obiiga1inn 10 pmduGB or disc;DSEl Confidential information
Or) response to ·~~·ie Process.
5.4
Public Re,!g,jQn§~.,'p'~:!\?U~.(t1.' Neither Party will issue publicity annOll!'CSments, press
,eleases or ohElr publ'c: staternents ;'egarding \I',e ,I),freemed without the other P~~rty's prior
Wf!iten approva!, COO;;;!$ may incluce the l~aTle "The Uni'.;ersity of Tex;:;!> c.t A.lstir( and the
University 10go i'.i'-istreted in fl,tt<.~chrm3rl<: A h,:-eto ("LGgQ") in iadual statements z.bcd University's

;3t"rticipatio:; in GOOQ!l;;'s digitization eff<xts, for o;<,;;,imple, in lists of other paire, univerSities, with
prier >.t'Vr;Ue~ perr'ftiSS1on of the UniversHy's Dlr~~ctor of Traiierr;('3rk Uc.ensin£~; p:ovjded that
8009ie is net ,'equi"ed 10 obtain sepmate permissions fm each use of t'1e Lcgo so long as
$UOS€f-llJ:::tr1{ us~~s 8re slrndar to tb~:; prior re\tie~Ned and approved use. l~~s a couttesy to WniV0rsit~1
to perro1t Un1VBrsity to cunf!nn Gongk~~!~ j1.Ki9H1snts re~Jarding sjm!~arHYl (300g1e \~liH p!~{}vide

t~)e

Univorsity post-hoc notice of ;!s similar u::;es for the first lhree (3) months 0' tho Torn

1.

8RAND

F;'8I!J.R.~S,

26:!5'tSh:i), Eech Party sllan own nli right, title and intere"t relating to its Brand PeBtul'es,
but not ail examples of Googie Bra no Features 81'6 located at:
1·:~itG./t/f8~N:D~;t~·:~9tf:::~~~(DJr~~~;.EICiLss:O.1TE.ltr:;;(.:~;~i.Il~rt:g}J.ktj (or sljch other UR.Ls Go-o~l}~ n"1ai provkie
frnir) time to lhT'O), Except 1Q tho ilrni(f)O extm,t expressly provided in tnis ;\gre()~Tl(Jnt, nei!~l€r
PElt'!Y gmnts. Bn(j the other Party s!wil not acquire, <'my rlght. title 0, interest (1nclu(linfi, vvithout
:lmrtali(lr-" ani impliHG lic~:n$ej in cr to $ny Brand Featur(ls of the first Party; atlc ~li1 :-ights not
~xpressiy granted tlerein are deemed withtw}d, ,Ai! lJse by Grmg!e of University B~and fe<3tures
(inclt;din;;1 any goc<dwilJ aS$OCiatB~1 ther«iwith) shaH inure to the benefit of University and
liSt; by
Unlversityof GcoGlfJ Bn:md Foatures (i!1GilJd}n~J anygood'Nil! assO{;iated therewith) sh,-~li inure to
the ben~~fit of Gocgl~. No P<;;ft)' ,~hail che}lienge or .assistothers to ~,hattenfJe the Brand featt~re$
of the other Party (except to pro(':)d such Parly's rights With respect to its own BwndFe*ures) or
the regisliution thereof by the otr,(')i Party, nor shaH either Party 8U(lmpt to ,e~!lst6t an)! Bra"d
Features O( aornain nmrw~, mat 8re confusingly similar toth(lse of the other Party.
'
7, j

Sc)tO{) ,

ali

7.2
i-iGem;e tn U0.ly.st[§!.\Y".9J.?f.l5LFeajums. Subject to the temi$ <-'no cond:tloni=> of this
Anfeernent . UnlVe(S~ty grr:n!s to Gi)Qu~e 2 iin:·ited nonexc~usfve and na:~subik~ens~1b;~~ Ucense
during thr: !{')t(l"< t(. dispiay thO~>B UniverSity Brand Features expressly authorized for u~:(~ in Ulis
Agro<tlli'ent sC:$!y for the purposes eXlxessly set forth ilerein, Not.lflthstanding anythih9 to the
C{)ntrarY, Un,verslty may ,'f)\fGke the liu:mse granted herein to use University's Brand to",turl:;s
upon providing Ooo,gle w!'th \fl:'itten nntice thereof and a reasonable. period of t!rne to cef:se SUGh
1

W'iBgC.

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a,

Filed 08/03/12 Page 10 of 41

IEBM.~~ND TERM!NATION.

,3, 'j
I~011, This AflreBmem is f)1'feetive £\8 or the Effec.tive D~~!e Hnd cC?1tinues 1r: tuH force !'mcl
$fleet for ? periOd ()1 six. {oi years, t.;nless earlier tetminate{j as provided heret!! (the "!nltfa!
Tenon
Upon the Bxpi,;:Jtlon of the Initial TNm, this AgremT;ent shaH automst;cBi!Y i'l::n811\1 fe,,.
:,Kidil:,on81 one year terms (e<,cj'l 8 "Renewal Term") unless either Party notifies the othel; Party to
'H,e Gon{:'ary at i:~ast thirty (30) days befOfH the end <l·f either tho lnlHBl T!:!ttl'l 0, ,-'l Hl"ne\>,;al Term,
The ''Tern,"' c-f this Ag,,,'l,;:nent shall comprise the Initial Term and any Rene.""",l TenTlS, '

32
Ignr:1ns'll<;'il. Emer Party may suspend perfom18nce and/or teiminate this Agm$ment: (i)
;f th<~ oirier Party matedally breacrleS ~my n~eM!'ial term 0:. conditiDn of this Agreement arid fails to
cure S,Jetl breClch 'Nitrdn thirty (3D} days after recelVing written notk:e thereoi; Of (ii} if the other
Par~y OeCOfY:es '~nsah/ent or :na~.es any asslg:nrnent for the benefit of creditors or sknila!· transfer
e.vi<Jent:if:g it!s<:)lvency, Of suffers or permits the cornrnencernent of Bny fOHr, of insolvency or
recr:;;!v¥ship P:"O'./.'::6(.tir,g, Qr has <>ny petition under bankn;ptcy law filed 89Binst it, w[liei< ;)i,;tit\on is
not d~srn1ssed v:!fth~n si'xty {fjO) tjays or such rWng, or has a trustee:. adn'1inistratof or! rece~ver
appo;n!ed iur ;ts b~Js~ness Of B5sets or any pErt thereof.
B.3
FJ1ftc~ ()'Lf~n{.§.tj9flor Termi!')$tiQO Afte! ."xpiration Qr \ermir:aiiGr1 oj this AgteJm~nt fo,
any feasor,;
ei:lch Party shall wilhin thirty (30) days return to the other Party (0:, c:l th$t Party's
request. dm>troy) any C:Jnf!d~t1tiai Information of that Party that is 1n its possession" (U) Google
silall witilin thiMV (30) days retum to the UnIversity f1ny Sek1ctet! G{)ntent thf:1t it h~s in fts
possessbn or ii,transil ct termination in a manner specihed in SeGtion 2,5, (ill) the Universay
shaH within :linety {90) days download ary digitized Selected Content that has been Cf!eiiilfld by
GooglfJ during ttlf.' Te,mbut not yet dO't-mloaied by the University at terminatOr), in ri manner
specifed i:-l Seetin!'! 4.7.1. The followhg sf;dions survive expfratlon 01" tenY:inc,tio!'; of this
,'=\greenxJnt: 'j, 2.4. 2.0,4 (excluding SeGtion 4J31. 6, 8.3,9, 'W, '11 81')(112.

n

9.

WARRAf:fflES AND DlSCLA!MER.

l'}lutual VV.arn~r1!Jes. Googte \"'iafH~.ntsl represents. covenants, and agrees that ih is du~y
,'Hlid:y existing and in good standing under the !aws of the state 0"' its incorporation.
Each Pi::rty repmsents to the oine; that
me individual who executes thlS }\greement has fUJI
power an<l authonty 10 do so; and (Hi this Agreement constitutes its valvJ and hinding obligation,
8nfo!'ceEbh:~ c~g8ins~ it ~n accordance \.vith tt~~ terrn$,
9.1

or~JanizNJ<

n

Pi§l::ia~;TIBf. THE WARRANTiES EXPUCiTL Y SET FORTH p.BOVE AHE THE ONLY
W/\RRANTIES PRG\llDED HEREiN AND ARE IN UEU OF ALL OTHER WARRANTIES BY THE
PARTIES, EXPRESS OR iMPUED, iNCLUDING ANY l~v1PUED WARRANTY OF
MERCHANTABiLITY OR FITNESS FOR A P.ART!CULAR PUV;;POSE, VVITH RESFECTTO THE
SUBJECT MATTER OF THlS AGREEMENT WiTHOUT UMITiNG THE GENEHAUTYOF THE
FOREGOiNG, BOTH PARTIES SPECIF~CAL.LY DISCLAiM ANY VVARRA.NTY REGARDING
NON-iNFRINGEMENT OF THlRD PARTY INTELLECTUAL PROPERTY,

9.2

'\0.

lNOEMNlFlCAT10N.

10,1

K$Y Googjr~,

<300gi6 sflaii defend, lndernnify, and h04d l:£mn!ess Unlvor!--:lty !irom and
",n,! an li;"biHties, damages, chwges, fees, incluqing r0asomlbl" ~-l1tornf!Y's fees,
expenses incurred by University and arising out of a third party c!:e:im, iaws0it and/or

i.19~'ins( Hrly

Gosh3, ~$I1d
(:lOY other legai, qU81)Hegal,

(ft. administmtivB ;mx;eeOing a1feg~ng that any or all of tho following
violste any ~"pp!ic.st!e law, !nc:!udfng. but nollirnfvdd to, an <~!leg;Jtion of copyr;g1-,t infrinH(H'f)On±:
Univ0n;iVs pl"Ovlsi(;n OT Av;:::il~lble Content te GOf,)flfH for digltization ;}u! ::m1y in the ,-,:xtent such
provision is all0£lGd to be (l:r(H::;t or secondary copyright infringWT1ent; GOcglf;l'S Dlgili1-ation of
AV8ilt,,~)ic! Content; the use or d;stnbLltion af GO()~1ie Digltni Copy(ies): andfor the lise of lne

GOOG05000375

A-654
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 11 of 41

Gorlgle Digital Copy- in ccnnedionwih Google Services, The foregoing indernnifi<:;ation jexchldes

c.:.ny third party cj~ji:-n that ff;lates to University\; use or d~stribution

;:1f

th;:; U·nh/t~fsl:iy Digita~ Copy.

i 02!;}.Y...iiIlfis:.s\tV. Consistent wllh ,!!nd $UbjB(:i to tl~E! requirements. of the Ccnslit(,tion ,mo
(lefi::,:nd, indemnify, and hokj harrnk~ss Go~gle from
cmd against "r?J and ,,1: liabilities, damages, charges. fr~es. including reas-anable atton1$/s fees,
costs 8iXi expenses incurred by Gnogle and arising out. of a third party dairn, lawsuit al1d!or ~ny
other k39<11i, ql.<~lsi-ira9~\I, or ,~cministrative pwc8eding alieging that University's (is'" or (g~tribLltion
l<'JWl> of the ~i\ate of Texas, UniVfj[sH.y );;(1,111

of the University Djgih:,~ Copy Jncludhg any use by ::1 third pmty) vioiat~:s <;ny appliqabiB law
incl,Jdirlg, b,j[ not iimited in, em alifJgat!on of coPyrififlt infrinoemenL The foregoing indoninHk:i:1l!on
t~xciudes

any th:~f'd pgrty ciaim that te~ates to LJ.n~vers~ty's provis~on of ~!),vaHab~e Contt~nt t~> C3{~og~€
l'or Digilization b the mdeni such pmvisiof: is aliegE1c! to be direct Of s..xonc!ary \-;opyright
hlrin~lemont; Googk-;'s Dif;!itizatio0 of A\JaHable Content the lise 01 dlstrihuib;l 01 Googie Dif:iit,e i
Copy(ies); BPdlof t.hB use of the Goog~e DigitB! Copy in connection ~:vltr'l t"'3oogle Services~

~O.3
Gene:aL ;rIB foregoino obliqation\> l>rwH exist only If the p;:lrtv seeking in(iwnlnification
("Indemnitee"}: (i} prom;;tly notifies the ind",mnlfying party ("Indem!l.ltoi'j or SJch c1eim, (ii)
provides the indemnitor wlth reasonabie information, assistance and coopemtion in ,jefentiing the
claim, l<",INsuit or proceeding, and (Ei) gives the Indemnitor fui! cMtl'd and SO;$ al!ti'H)ritY ove" the
defense Bn,j setlemem of stJch claim, SUb.l{lct to the statutory obHgatkms of ti,e Texas: Attorney
Generai when tb" Unlversrty is named as a deffmdant in a lawsuit. The lndemnilee mioW join in
,jefense with coc.nsel of its choice at its own f)XpenSe
.
''I i,

,~1!TI,\t~1!on

of liabiilty

(/!..) iN NO [VENT WIL.L EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR
ANY fORi,,1 OF lNDlRECT, SPECI.A.l., INC!DENTIlJ.• OR CONSEQUENTI.A.L OAfvtll.GES OF
ANY CHARACTER FROivl ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THsS
AGREEMENT, VVH2THER BASED ON 8Rf.ACH OF CONTRACT, TORT (iNCLUD!NG
NEGUGENCE). OR OTHERWISE. AND WHETHEr~ OR NOT THE OTHER Pf\RT'{ HAS BEEN
ADViSED OF THE POSSIBIUTY OF SUCH DAMAGE, AND (B) EACH PARTY'S UABJUTY
UNDER THlS !.l.,GREEMENT SHF·U, 8E UMITED TO ONE M1LLlON DOLL,c\RS (S1.000.DOO),
Tim Parties a;yee that
the mutua! agreements made in this SeGtkm 11 ,effect a reasonable
alkx;ation of rlsk, Rnd {Ii) tl1at each party would flot enter into the Agreement l,'.i(tl~out fh0se
Hmiialions or, liablHty, The foregOir;g limitations Mwever, are Dot applicable ,0 sny dart18ges
arising from <l breach. of Section 6, Confld~mtiaiity, to a~)y monetary obli(]atJons arising (wt ()f the
inziBrnnifiGabn Dbligations in Section 'W. lndernnification, including, but not limited to,
In(iemnli:cation foe aiiq!atloflS of copyright infringement or to any dam2£!CS related to actions for
personai injury Ot' wil!ful r:lisco;')(;uct. The limitations set forth in (8) c;bDveare not applicable to
damag!;;s arising ~rom w!xks that are lost stolen or damaged whde such works are in Google's
(;wstody or G(mrroi subject to thn limits set forth in Se-:::tion 2.4. University's obligations set forth !n
this Section are subject to the pmvisbns of Section 12.13.

n

'12,

GENERAL PROVfSION!%:.

'32.1
b!Q..QtJlia?:(t.LUD.. Notwithstanding ihe bragoing, 800g1e shall have no obligation to dlgttize
any portion or tht; ,ts,vf;lilable Content nor t!J use any portion of the Goo-nie Oigih'l! Copy as part of
the GOG9Ie Servic,ls. Uhiversiiy sha!! not be (lbligat..~(i to parllcipate in any Projett P!i1n to the
extent U~d\ier:;\ty does not have sufficjr~nt funds tv pe,form its budgettd ob\iga;bns uhde: thHt
Proj0Gt Plan. Furthermore, notw!thslandil1n anything in tl1is Agreement to trle crmtre:ry, If Goq;le
det(1rmines, $t its ${)le dis.cretlt,n, not to digitize some or <lIt Selec~eo Content in o>nne~jjon witl1
one or rnore sp!::cifk Projfid.S, w!18ther due to cost issues, conservation concerns or o1herwise,
Google shaH fwve flO <.lbl!g2t!on io the University with respect to digitizing Of delivi;ring the

University [l19i(;;li Copy 'NUrl respect to such SeleCled Content.

GOOG05000376

A-655
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 12 of 41

h!?;'SlgnCls'!.l1. Neit'ne~' Part·v rnay <Jsslgn any of its rights or deiot,;late any of its duties under

'12.2

this Agr,:)0m~mt wHh(m! the prio, written consent of the oti'ler Party, whiCh shall l'K,t unre$son8tJly
be withhek:, ex.eep1 that i.'iinlflr P<Hty may ClSSKjrl its rights and dei0gcrtf:[ its duties ul.der lhlS
Agreement \1f}(.m wdlen notice to lhe other Party tn 8. division 0, en affiEt'ltc lncreof (t!'(a~ is nct E:
Go:npfihtDi of (he "lon-assigning Party), provided such division o( affili<:ltc ~lgl'$eS to be bound ;:)\1
ali oi: the ieim~; h.lrBOr; and provided further that G0091€ may ",$sign this Agrf)0f1W)d 'Ntthout
cons,mt to ;" sW::03ssor-ln ,interest in ':;OflflOGtion with a merger or thH saie of all or s!Jt;siantia!ly all
of its assets. !>...ny ntternpted Bss19nrnent, defega'cion or transfer !n derngatiDr': heteo! sh~il be null
~~nd

void.

12.:~

Continuity. ']'(Iis· Agreement shall be bInding upon the successors ane! peO"litte<j <'I$sigrlll

fif bdh Parties.
12.4
N()tic~;s, Unless provided r<Jr to the contrary in this i\grs0:rlfm\. any and ail nbtiG€5 or
oHler commun;c,:',!l;ons or {leHveri~s requinod or permitted to be made under thiS Agreen1ent Sflal!
be de~~med 1'€<,;eived iii IJpon receipt when delivered p(lrSOn~l!!y, {i;j IJPO~1 written venfi(;<:ltbn oi'
receipt from ov.m:ighi (;ourier.. {Wi upon verification of rec<lipt of r~;gistered or cert!fii;t(j mail or (iv)
upon verification d receipt via facsimile, prOViOHd th~t slich nolie;:; is also san! sirn~;!tB>lebusly vi",
~'irst c!;:~ss mal! 3"d 8zidres:sed as follows:
.
'f k) Uni\!(:lfsity:
Th~, Uni'ifersity of Texas at Austin

Office Gf ths Vic$->?residenl and Chief PinanGfat Oificer
PC) Bo::< e."!79
}\ustin, TX !'Si13·BU9
ATTN

K~J\iin

P. Hege1f'ty, V!C<~ Presidan; CirJd Chief Fil"lal1c.ial OffiG01

\Nith 8 r;op¥ t):

Th€ Univef$ity ·::)f Toxas at Aust!:1
Univ~m::ity

of Texas Libra:ies

C)'fncr:~

GC ti"l2 \/jce--PrDvost
'1 Unlv(~rslty Station S54DO
At;stin, ·Ti. 787'12
iHTN: i"n.?d f;1, H~<Jth, Vi,:e Pmvost aile D;rect~lr of Ubraries
~f

to GOogre:
to suct: ~ddress <1$ provkted at yt:~\y'_9q.Q5~~J.§:.;?gr~lLqQG19~I~ls~i~l::}~ti?31~.%~J)lrn; or !-3S, (?the.rvJtse
prov~Jed in ~vrit!ng fnr such notice purposes. A second copy of every notice tf) GOO{l10
shall be sent to thB 8ame acidress, "Attn: Legal Dept".

Contact inkrrn,.tion shan be updated in writng as necessary b ensure the.t 88Gh patty has
current iiltOnnatkxi r{;gard,ng all such contacts.
';2.5
lndet}~mi.~mL.9ontractors.
The Parties hereto me "H,d sha!! remain !m.:JGpendBnt
cont!>.-'lctors, and rmthlng herein snsJl oe deerned to create an agency, partnership, or joink ventWf:!
t,etween Hm Parties hereto. This ,<\greement does not a!iecteny right thal either Pa~ty INouid
~'iavB h3d~ or shaH hr{y.fJ~ lndepen(fent 01 the Agreefnent under'appilcabfu· lev.;,
.
':2.6
fQ.:t;,fi;);;]f;\[mh{fg. Neiill€r Party 51:",1i be Hable for failing or delaying performa*B of its
vbligatiolls ,esi.ding from any condition oeyond its masonable controi, includinr; but not Hrni!eci to,
r~O\lC!T'rneniEl ~~Gtlon,aGiB Df tmTorisITI, earlhquaKe. fire, fiood or utber acts ofGf~d, labor
t~on(!itjcn$:> pOV1t,,;r faHures) and ;nternet d~slurb-anGes,

or

L'lf9!f0.;iQJ. i;'.1. if 8ilY prGvision
(tlis .Agreem~m\ shi?H be adjudged by any court of
C()mpHtt~ni jurisdiction to be unenforceable or invalkl, thai provision.shall b'~; limited nt' eiiminated

12:1

to the minimum Bxtent MC$SSC\ty so that this AgrfJ0ri'lent shall other\vise r(~main in full force and

effect and fBfnain

enfo({;~~~ble

beh·veen the Partes.

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Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 13 of 41

12,8
l\Jon··\;Y:sh!..~~T, fhe fa~;t;fe of' either Party to act in the eVent of a bri~acrl or trlis !~.gfeern£nt
by HIt:) oth<l>r !>~:":1I 1;{:{ ;)~) (ieemed a waiver of such breach c,,' E: wai\mr of fUture breaches)
1/... 9
',•.tiIlilQ\!WI. of RlQi\;,?. No provisIon of thes Aureeml}nt is intended to coder ahy rights,
f)t::!nerlts, WlTl$(EIJS, UtJ!iG3lions, or H,1b!i1itlS hereundHf upon any p;:m;on Of er;tlty dhcr th~,n the
Pf~rtjes and th~)if' ~'especiive successors and assigns.
.
12.10 M.~.§.'lbflli. T~-le section and paragraph ileacilnps used in this Aoreenmnt are in~ertc·d for
C(llwenience only and s~laj; not affect the meaning or irterprett'ltion of lhis Agreement.

12.11 IS,{[t§.mJInent.
This Apreeme'lt sets forth the entir~, t:nders!anding and agreement
betWG0n the Parties and may be amended only in a ·,A;ritinO signed by bolh Parties
i2,~2

Fr<.,nGl}J§.fLJax GerufiQ't;9.1], 800{)le i:. an out-nt-state corporation thet i$ not

$ll<')j$C~

to

the Texas F"ol'lchis.e Tax.

12,12,

PhlRlJte R~.~I;\!)i9D..

;0 the t:)xtwnl that CMpier 22i3D, Texe.s GQvel'n;T:~:;ntCmje, is

appl;c<;~)ie 10. this AgreZlmen!. and is rot preempted by other applicable law, the di5pLlte i\~solution
proceSt~ .provlded lor in Chapter 2260 Dne the related ruies adoptBtl by th{~ Tems. Attorney

General pu,su"mt to Chapzer 2260, sha!l be used by University and Google to attempt to resoive
any claim 10,' br",,;!,c;, of contract fl'lade by Google ttlat l;annot be resoived En the orcinaiy course
Df busi:,(!lss, The Chief Business Officer of Univt'lrsity shaH examine Google's daimaml "flY
cmlnterdelm Wl(i (]ogoilate wi ttl Google in an errort to resoive such CIHim;.l, Tr,e Partjes
specifically aCE,e th,J (i) neltl:/.'H· the ex.ecution 0';: this Agreement ty University nor any other
conduct, ,,~ct!Of~ (;;' inaci!an of any representative of University relating to ,his Agreernent
constitutes or ~~~ intende.d to constitute a v~'atvs( of Unlversl~Y~s or the 518t01S sovE:i'$ign knrn:. .H)ity
to suH~ a'nd
Unhlers:~·t'i has not wahlf:d its·r~ght to seek redress in th.e CDurtS:.
.

un

{Rest of pagf! feft intMtionally blank.}

12

GOOG05000378

A-657
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 14 of 41

iN W1TNESS WHERJ:::OF, this Agreement has been executed by persons t1L:!Y 3ulhor!led as of
lhe "Effective Oat'"'" 'Nhd, shall be the (late wriHBn by GOOgi0 below,
.

.....

.,

::.:.;

, ..

:,'::::.

-·:r:

GOOG05000379

A-658
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 15 of 41

Google aife! The Jniversiti of Texas at Austin
Coop(:irati,J,e Agreement

,il,tiachmsnt A: Thit. Jniversiry of Texas Logo
,<\$

setfortn,i:) Sec[;Of1 (:) 4, ,fle Loge ofTne Universiiy of Texas at Ac:stir, shaH os ardmerioci{ing UT,

repnesenteo rJelOV'.1.

GOOG05000380

A-659
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 16 of 41

COOPERATIVE AGREEMENT
This COOPERATlVE ..6,GFo~EEMENT (the

·'AQr€0m'~fit·)

is entered into Cy' and bI:irN€fJn GOGgle Inc., ;:i

{;n:VoffjUOn wHh offices Eit Hmo Amphitheatre Parkway, Mountain \/Y3W, Gaiif{)mia 94043
(,T~;~{)l~.©") and The Ekmnj of husteElS of the Uni\jersity ot lillnois on tJHhs1f of ·the Cmnmit1H:! on
bstlu\ion8! Coope,ation \8S described in SeGtion 1.3 helow) ("C!C") and eac.h uniwn>ily iisted as <.!
member of CtC in Section 1.3 beiow that has agreed to the terms r1fJrein by eXecutinr.; B sipnafum page I.e
this Agi'f!f.lment (each such univ(lrsity is rofBtr€d to herein as a "C!C University'): eli such universiiies are
c,::.lIectivd}' rMer~<~d to hercinas the "C!C Universities", This Agreement is effective ~)S of the da{e signed
Delawfm~

by C.jot~g~e be{o,<~~~ (the ·'.~ff~s~~t~§....Q~~st). Goo~~~e, C!C~ and each C~C University here~o J:re s{)rnetirn{::s
referred to i;orBinaiter individually as Ei "Party" end ool!ectively as Ole "parti€..§".
REC!TALS
VjlHERE)~S~
co~~ection

EaGh C·~C tJniversity ~s f.l
of vi-:)rks in v~afJOUS rned;a; and

~eadjng

acadernic instltuUon and

h·~;s arnas~~Hd

.f;n encrrnous

WHEREAS, Google provkles the pub!k; WiUl access to ''1Gb pages or; the Internet, 8mQr'g Qmer products
and ser\t~ces; and
WHEREAS, GCOgif;; 8;,:.d the CIG Universities share B. mutua! interest in m,:l"\log information av",ilabie to

the· pubHc; and
VVHEREAS~ C1C Unlverslt8:s lA4sh to di£litiZf': portions of their conections in a rnfH1ne{ cons~stent vvith
copyri£lht tav~ to crS8·~$..~ 2t s·aarchabh:3 d$.:t8bE:Sf~ to facmtale uso of t~ejr ~~oHections by scr:olars and lfK~
~JC1leml PUbliC for ocvcBh:m, research and mia!;ed purposes; and

VVHERE;:\S .. c~c ijr:iversities and Google helVe oeter·rnlned H~~3t ~t vit:~~d be ~n()s.t cost efiecUve Hnc
redli.c0 the risk of dan~aging vO{:Jn~es in the GtC Universir;:es· co;!ecti<.Jr:s: to create d;·gfHzed copies for n\(;;
elc Uf,ivr:~mi(y's ':',~ir use and d:gitized copies far Google'" fair llse 21S [Jed cf a sinQle ,;cannillg project;
1

~j(;d

VVHEREAS. Go::;gle is ~vH~~ng to d;g;t~7.e works from ~he coHect~ons of C~C UniversjUes for Goog~~fs fair
use purposes "nd pwvide 8'%$SS to tho {iigitiz6d works to each C!C University as described her<3in.

N.OvV THEH_EFOr.zE) i0 COt1·sider£:tion of the rnJtue) C{}Venarlts set fonh
Utdversity ~lefeby c9ree as fOlloVJ$~

he(0~·~·~1

GOO}j:!fj, Cie. EH1C eaCh

C~C

DEF1NITlONS
1.

DEF!NIT!ONS. CapitBliz~d terms wili have the meanings set forth below:

'L i
~~8v~~1~Q..@u~~QJ).!~gr inef.UI~ those' port~o-ns of each CIC Unf\/ersH;is. print coHechvn that
such CIG Univefldy wishes. !{J make avallabk, to GOC'i:jfB fOr Digitizing and that Google may wisl'~ to
Digitize as from Urno i(; time idenlified '0,/ Google and the [1ppiicl:lble GlC Un!versity\ Tl,e term "A\I~,Ht:l:ti0
Gont~nf< ;:~!SC inc;~des e~(;rl C1C Universitis D~gna.f Content.

i.2
n~:1rr;e~t}

Hnd

"i$.t:§f.l9....f.:§.l'llkf§!?" means !.he ("ace names, trademarKS, service mmKS, laUDS, dorr:ain
brand fe~3tures of each Party} respecUve~y:. t-1S secun~d by such Party frorn

{)tf~ar d~sHncUve

trno to tiiYH:}.
"\~.\G." or T.;?n.\mill~f:.. m.Llf.\fi.\!M:(9D.?E1,§lQl?~~r.sl.!j~)!f is a consmtium d twe'v& (1?) <&Seareil
the! coi!ahorate on a wide fang8 of academfc and edrninistrative initiathms. The Gu,mnt
members of tho C1C ;?,re: University of Chicago, University of illinois, Indiana thivBfsity, Univorsity of
iOW;:I, University of t,,{c:nigan, !vliohificm Stale University, Un~versHy of Minnesota, North\N€St€n1 Univ~rsity,
University d Wisconsin-Madison, The Ohio Staie Uniw)!'sity, Penn State University. and PurcjtH')
Vni\/<:;rs,ty. F<x the purposes of this Agreement, "GIC" is geiieraily l)nciers.t(KKI to refer tQ the trlirteen {13}

'1.3

universiti~,s

GOOG05000002

A-660
Case 1:05-cv-08136-DC Document 1053-3

r~~scafch Hbn:;rk:!~

Filed 08/03/12 Page 17 of 41

{including the Hbrari6s t1ffmated iivnh t}':6 Un~versity ot mino~s at U~tjafH}·f"::harnpaign and

Chrcagoj 8ffi!iat~:d with the ClC rnembflr institutions. These libraries have 1< long flistory of collabofstltm.
dfH.l estatlilsht'ld prtYc8'sses kif sharHd tlecisiof1-rnaking faci[italed by tt,e eiC Atiministrdtive omces.
·~.4
«Qlf;".':\0::~[!.~['?t91l:L§' Ot'fI9~!:( is the central CIC adrninistr[;tive staff npe:BNng under the
adm;":(ilr2ibve ":l..ith;;:-i~v for the CIC ves!e<i in the Provosts of the ,"[lember GiG Universities. ClC
...
Administr<.)tive Offices $(e foCi2lted ~t Hl19 $Guth Nell St, SI,lite D, Champaign, H 0i?20. The fiSC.,! agE;;";!

fDr

~::lC

33 The

Hr~a~{i

of 'r(UstO(~S of t~"~c University of Winols.

"'L5
·;!:()pv;jght La~\j§~ rneans the U.S. CQPyright Act) i7 lJS.C. §§ i01 et. s~~q., aH ether
copyright laws, n;if;" snU regulations worldwide, and all international treaties creatlnfJ or protecting
ccpydghts, ir1ciudhU thi'l Berne Convention and the Universal Copyright GOf'vent!::m, ~3". the same from
Hme to time e'Xist

'1,5
l'o)ycs(lntati()~)

"DlqWze" means 10 convurt content from a t2ngibie. 2na;og fonT ide) 8 di9itai electronic
thnt conient "DigiHz.ation". "DiglHzing" and "Digitized" shall h8ve corresponding

or

meanings.

1.8
"i;'~9.9qi?,J2.jgil~11 Copy" means a digital copy retained by Google of the Sdeded C()nt(~ni
that is Dig~tlzod by f3009k~,

1.8
"Q,QgQlj~ Ser..;)£§§." means Gocgle's products and services that are ",cc0ssible tlroligh
Hnd otheiwlse provk1~Kl t,y various computer anti elfJctronlc technologies, networks (syndic3~&d End
oUlerwk:;e) an(j sys!:<~r,'s. including without iimitation, mobile wfreless seI"vices and lniw"eH)RSed SNV!C«lS
accessi!hl thro\lph the Goog!" Sites and any Goople syndical.ion partner sites .

.~ ,1(;
·'Qgylllc SUe~) nleans any vveb sae ~ocated at a
sub<lotnains ~~nt~ {nr~~c'1or~es ~hercof, ::::nd r:lH suceess.or sites thereto.
~

1

12

:-'HGstqd.§o~utk)n~~

shaH have the rneaning set

"jJJ..:Q.~·,"}ovr~gnLYjiJr~§~~

forU'~

Googk;··o\~\'rled

in

S£;cti~)r:.

Gcrrt2dr:! fnc!udh1fJ all

4.6.

rneans thc-!~e v</o~·k$ of Orgfhzi:;d Se~eeted CC:ltent lhHi are in..

i .14
"Qtl}§;:;~i!:'l:<mi' "'leaDS any libf~,ry (other than 01 CIC Uniw:m,fty IR;:,<.;;·yj with which Googk
has an agreero8nt as of the Effect~ve Da1<?, concC:Jrning D?£lH,izEition by (30ogle of tK~ol\s frorn that ;ibrary.
·1.15
putJi:t; dol'lls!,'!.

1.·W

~:Pubii(:

DornaH1 ',/VcE'ks." rneans 1hose 'Norks

Dr D!g~Hl.ed Sei:e,~ted

t~ontGnt

fhBt are in the

"ProieGl" means a pcojOGt few dinilizing certain Sefected Content.

1. '18
''?r91?i?i Pla..n" means a written plan for impiemer:ting a Project. i no Proj{Kt Ptan shal!
include the rO!!QwinU: (a) tlrnetatiefof Digitiz1ng thfJSelected Content, (b) instructions by a GIG University'
mgmtHn£1 h}\'l the Selected Conlen! is to ba collected and rBtllmect by GOQgle; (e) I'n;?,terial handling
processes for U';e Selected Confent, (d) if requir$<!. Ule arnoun1 of Hni!'! ava!iaiJie 1<) to; (;1(; University for
pf;1iformif1[1 conser'l{l(iO,l efforts; (f;1) the amount of tirne available to Google frorr receipt of the Selected
Gcmir:mi uml! it i$ due tr.; bB retucneo to a CIG University; and (f) a bud9~lt fot tho Project
1.20

"B§D~w~~l..I§!n:l.l" shatt Have the meaning set forth in Section 8.1.

1.21

"~ill?£:!1g_

Content" lTlBanS

trw por,1I;)(1

of ttle Availabi€ Gont;;mi that GOOqiH des:,~% :0

DiGitize Of i"'GOrpor~-'lte into \rle Googla Servicns, both coHectiveiy and its. comp·onent parts. 'indUCing any
('Ir,d all ",ther works of ~uthtH'$hjp included therein.

2

GOOG05000003

A-661
Case 1:05-cv-08136-DC Document 1053-3

122

Filed 08/03/12 Page 18 of 41

"Sour[:e CIG UniVEtsity" mOarlS the CIC University where the SeieGted Content 'Nas

2.'(
!!;(~D.\ifYimL1t(~.... 6.y.~!!i?1i.!~ ... gmL.§f;J.~.g~f;g....Q.Qntenl to be Diaitizeq:.
Googie, the etC
i\[i:-nirlistrnllvc Oific:,;s, ;,lnrl cach GiC University sl'?all collabomte to jfJenlrry /\.va;!E!J;e CrmtBnt (hat Goog;e
r:'18y e!eet td D;f:I~N?~?. TllE: (::!C Univ~rsjtj·r:!S a~!ro·e that tt!£!)1 \lv~H coHel'1~ve{y' r:orru-n~t t'tva;U~b;e C"on!ent of
not less th~::; 1Q,CDO.DDO ,-/olt;mes ~o the Digitizalion of!orls under t~lis ,t"greemenL induded in the
/\vaHabie Goni$Jnt \~Vm bEl CIC ~~br~~:y hoidings tha~ add neYI and uni·que contGnt to" (3oC<Jie Servjc'!J$~ and
"CI::,ilecliDrll> of di.sbnclion" from across the GIG ~ibf8r~es that will be n:;wrnrm'lnucJd for DiglUmtlnn in lob.
A" in<licrltec i!i Seeton 12.1, Google reserves final cHscretion OYer which A\rai1abl~; Conk,d it will Digitl<::c
(Seiected CGnterltj. but '.viii coHaborsle with the GiC Administrative Offices in making tr~ese d<:·-cisior,s.
000g1(;. the GIG AdrnlnlstmtivB Offi{;i.'lS, and each CIC Un~vf)I'sity shall cooperate in good faith and wor~.
tii!igently to develop a sequence and timetable fo, cornpietirlg the Project PI"n for Dignlzlng the Selec!ed
GGnlent of the GiC Universities. Each Source CIC University wm provide BODgle with metadeta for €'.ach
Selected Content to C$ Oigitiz.ed in the format specified by 000gle prior to Google Dlgi\izing any Selected
Cr.mtent. f\isn, 9ach Source CIC University wil! provide Google with an idemifier such as an OCLC caii
numbe, for each text nf the A\I;3iiaoie Content 25 soon as reasonably possible after the Egec~ivc Date and
)fier to the commenc(~ment Df DigiHz8tlon efforts under this Agreement of the SeieclNi Content pmv1dec

by st]cn S00rce C3C Uni"\rerSiiy.
Q.9E§.~:t~ill.. mEi_.se!eGted CQJll);,J=.t. Each CtC University ,;1nll be ,esponsitle for iocating .
rnov~n~J the· Se;ected Content. t.o B deS!gnfJted tccatior: at the C~(::· -Unlversity fac~~jty as \veH HS
'0-S~;0ivif~g the SeiectBd COl~tent when the Dlgitlzation ;$ compiete. Upon cornmf:,pce"lx)nl.
Project,

2.2
pt}lHng end

or ; )

and cons,st~nt wit, ,~e,'~",al qui(la1lr;es set foett; by a GIG working ~lrouP. each GIC Un;versHy sh3H
perform any- con,of,rva;i(;);, efforts that the CiC University determines are ,·oqU1«3r.l fGr the assoc1atExi
Selected ContHnL 0:1 a roilinG bagis . 8S this conservation effort is cmnpi8ted, eBcn CIC Univwsj,y shaH
provide the o)f1se';ed Sel"cted C00terlt to GOO~i!(~ for Digitizing.
2.3
T.!I~D.~gf!.G:ng..EfKi S;oDJ.)Qj:he Selectee Content Google wiH mOil",) l'n(~ Sfj!8G(",d Content
h:v(l B (!esig~ated ;ocaiion at tri8 C1C Univemtty facility to 9 Dinitization facility conl.miled by Google
Google wiil provkle and be responsibit 1'or commercially reasonable transport methods Hnd temporary
sioraQe areas appn':>pulte fo, ti'ltO S~~i~:-<;N.?d Content in accmdMK:e with SectiGn 2.5.

2.4
I?jgl1qj;JQ tt:f~ SP.J§2~t~g...C.QJ1ter.t. Googie V'' <-HI be respGns;ble frw Digitizi:~lg nlB Se~ecte(i
COflient SutYject to handiir;g Ctf'-,strair,ts or jJrocedures specified in the Project Han, Googie shaH in its
sO'ie discretion det,nnine nnw best to Dlgitile the Selected Content, So long as \he (",Sumng digital files
conform to <1 min3rnu,,-, specific;;,tion established by GOl)~lk~ in consultatiDn wit'l the GIG Administrative
Glficns, the CiC UniverSities, and ire Other libraries. While the Selected Content is within Goog10's
possessicm, G<){if,iit, sl-;(:1[1 use con1f(1ert:iaH>' reaso!1(lble efforts to minimize dnrn<:-lge to the Select(,d
Content, ll1clut1ing handLnu ina Selected Contentin accordance with handling hshlctions set forth in the
Prcject Plan,

}f·t~ny,

2.5
,BsUrrl uf the S~ieg!@.g.wContent. Googfe shaH mtum tt'e &.3{·0cted ContfJrlt to tile
designated piCk-up ;oo.'!tion at tho' Source GIG University and in the like (naflr;ei' .in w~lich it was coHected
$'ir,;r Goog!e Cornp\r,;t€,S Digitizing tile Seleded Con\f~nt. Google wiE provide <.'<nd be responsible '((if
cotnrnorciaHy reasonabie transport :nothods apprapriate for the Se1ected GQntent in accord(]nC0 w;!h
S$Ct. 2.~t

2.fi
Insurance Cnviliage "fqr..Qjgltizatkm QoeraUor;§. All risk of iG~,S, damagB or deslrwclkm of
materials wiii He with GCDgle frmn the tim€) lila! C;oogle accepts possessio" of tt;e rnaleriBls unlH tney are
retumed to the Source CiC University; provided thai each CIC Un;w:,;rs[ty <1gmes that Goog;,,'s obligatiorl
will Mt ex{;eed SLf)()G ['or any givml text and that Google's maximum liability for any damB91a nr IO$s tc

GOOG05000004

A-662
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 19 of 41

Se!eGtHd Content in C)oogle's Gl.lsiody res;;lllnp from a single inGldent or event 'Ni!1 not eXGeeCl one million
{loHan) {$~ ,GOO,GOO). (;oog~e wi!! carry r€asonarJiy sufflciont insurance witb a repu1Hbie ind&pendent
pr()Vrder inslJrinp against the risk of loss, dama[.1e, or destruction of m:1teriais entrusted to (;;oogle's
Gu;-:tody, ~'tnd 'lim pruviria. upon request of a CIC Uni.versity, a certiflcatf, of insw'(ln(:e 8\1;<}(lIldf'lg sW:;h
[;OV8raqe. 1,-1 general, Goog!e ~ill! provide <: transport rnethod and tefnpomry ste':8ge ama that is
re0$C>(';sbiy c!er.n, {iry, coo;, free from insects an[! other pests, protectoo from ilre, and set:ure against
theft and Va(l<il'iih,;i1,, However,. uni,:;ss the etC Administrative OfficfiS or a CIC Un\v,:)t'sity m<>l<:es OOOgiH
;:;W<I[,,; thaI SIX;Gib: m81BfOS'$ f0(jtlire non··stan<iBrd carEl, t~anSPQrt, storage Bndior procJi)ssing and Googie
di"eidfls to fin forward ,-,,'itb digitization d such items, G{x)gle shall have roo responsibility to undertake
special efforts to adcr(~ss unique W' fragHt'! cenditions in its transport, st)rage or hafH.ignG of indlviziuai
it~~;n", Each CiC Lhlvsrsify wm provide Ooogle with a good faith es[lm ..
,,;.e {if (he vaiue of :;in)! Selected
Coded appr(wed f{Jr 1'ilmoval fmr,; Uw CiC University's premises and vAll provide Googie with ;,,11
itf.~rn:7.ed list {)f any ;:;u~h rrH1terials

3.1
Gg§i§..p.pJ9.J.tLJ&ch CIG University. In ~l(iditk)!,l to costs ITiLlt\.leHy BgrE!ed upon by If,,e
P,.;rli;:;s, eactl CiC University shall b~ responsible fOf the fOI!owing costs; (a) those :-eiated to 10Ci.'itfng,
pu!ling and !"novlr.g tho Seiected Content to a designated location at the Sauro;.! C!C Univ;.:,rsity facility as
'Neli a::; fIH,flf,lv!r.g the Selected Content wile!") the Digltization is compiete, (0) those r8!aioi to existing
ClC University <'lmpioyees 8::ld agents whose participation is contsmpiated by this A.gr!!Jem"ml, (c) network

bandwidth arld tiata storage reGui!'ed by C!C University to :eceive ali of the LJnivlf.ws.ity Digg2)1 Copy, {til
any consmvak):, ;,dOriS that Source CIG Univ<3l'sity elects to und0ri~jke on the Seieded Content prior to
[}gitiziq;l, and (e} G2rc{)(iin),l and aSSOCiated d<:ta entry to b2rcode the. Selected CrmtenL
3.2
Q!?,~iHLq9nl~"bv Google. In add;if·o!) to costs mutua!iy agre€C [mon by the Parties. GOO£lie
r{lsp.onsib!e h,X·lhe "foiiowklg costs: {a) those relalod to Goog~e ernp!oyees v.[hose part;r.:ipagon ~s
cont(~rnpiC!t(;d by this !\greernent, (0) hardWBrv E1:l0 softwme arid other e-quipment or tecl1no!ogy useD tG
Digitize th;O) SdeGt",c Content, (~) ;;P~]ce required and other fsciEties \Jse( to DlGihze the Selected
C0l1lenl, and (d"i trc);1s~)(Jrlation 01 Selected Content from the Source GiC University h,ciUty where the
Se[ed(~d C{)r;tnnt is 'lmnally kept to ? Google desi9nated facility and baCk to U-i0 Source CIC University
fadUtv 'NhBre H-te Selected Content is normallv kept. plus any inCldentai storaqe at 2 G(){)Cif; desionated
sha[~ btl:

fGcility _

'

,."

.,

;3':s
t\'9Q.Q1§. Notwithslm1Ding the foregoing, the CiC ,t"crrinistratve Offk:es or any CIC
University and Googic rl''ily jointly develop a t.n.Klget to ;;).dvance coordinated plan,!ing for each University
Project Pian. pl:rSl)fml to 'N~llGh the Parties may alhx:ate the cost of researchinQ arKi icentifyinfi the
f.\V8iiabie Content and/or Seiectf)C CGntant~ conducth')~] conservation a$SeSsrnf~nts~ perfor;--ning
C(;I'H;(H'v,ltion worl<., ;3ncl pe(iorr:1ing <lny ,-equired copyrigi11 research and ciearanG8S f.\J'l'i such budget
ogr6ed to in :;:vriUng by tf)c~ parties \vltJ take precedence C\ler the provisions of SeC~tons 3.1 and 3.2 aDove.
4,

OWNERSHIP AND USE OF DIGITAL COPIES AND SERVICES

4, 'j

\&il::ifiQ!11 §lgA",§.

(8)C9SlPli_91Jf,:-? __'Nit.D__ C9.Q:fjght L,,!ws. The P<lrties understand that the Selected Content
toey i!'lci'.lde sc:'no 'NorKs that will be tr<:J':ltO<i t~er':)L!nder as PeloHc Oorn.ain Works .mo some works

t.h<.lt ~'''iH be t.rB;~ted reround"" as In-Copyright VV'orks, The P;;;,'ties. agree and intend to .perform
this i\gr",ernent in GOl1',p iiB!'lCG with ail applicable Cdpyrigtl! Laws and \",iltlO:Jl infringing tr19
inteHecLwl prq)(!fty righls;x any simiiar rights of any third party.
{h)
D.fltf?En;Ilf~JjQL1 ..9.f..GJ?p.Y.f.\gN.. §.\?.\l:!§. Each Party wiii be responsible for c€terminlng at its
reasonable jjscrslion how to categorize $e)eded Content under app:icabte Gnpyrigllt Laws,
NotwHr;st«)1!ding sueD determination, if any Party believes in good fait'! tr1at any part of lhe
Sejf~ct0d Gcntont shadd be treatoo as an in-Copyright VI/ork under any ;;iPP[lcable Copyright
laws, sno so r:c.tifles the other P8rties in writing, then, within fcrly~eigi1t (<lSl !~OLlrs of 8nother
Party's «~Ge';;1 of sud', notice, such other Party wi!! take approp"iatfJ steps to 8S:,UrfJ that it is

GOOG05000005

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Case 1:05-cv-08136-DC Document 1053-3

treating, 0: 0{}ing f{xward

wm

Filed 08/03/12 Page 20 of 41

traat, such part of thfi Se!ected ComentE;$ an in·Copyright INork

Ut~cor s~.:r.:h CC9yr~g:ht t.El~VS

(c)
:'Qp.\::Q\'J'.'p.(9;,?91'!B~. Throughout 1he Tenn, Google wlil impl~~ment and rna;ntai,~ tt\l')
"NaHabijity <Jf processes whereby the wpyri£iht holder can requeu~ GOQgk:J no! to DigitizB sp0ciEG
ifl-COP:lrigbt VYorks inciwied in t')e Avag.shie Content or the Selected CQ:1tent or, if one or more of
slich irH:;cpyrighl Works has already been Digitized by Go091e, !O C~<'-\$e the display or use of

t:;ucn fr~ .. Ce9frlgJ~t V\/ork.s rn~~je b~( (~oog!e under this Agreernent !f C";r.:~::~gte d$,tarrn~nes that the
person Of" entity makinG the request is the o::JpyriGhi hvlder or has aop",rent adhadv tv act 01'
beh':lf of the <~opyrigt·.1 h,:;!der, Google shall prO;,ptly complY w,th ~I;ch <equest ~nd promptly
notify th<~ GiG 8ndeacrl ClC Unlversity In writing or such rG,qtws\ if HlfJ request requires a CIC
Univ~!f$ity io i~*e i3<;!;on [9 cease the display or use of the In-Copydght Wor~;s 0, to delete su.ch
in-CoPYftg:,t ';Vcrks irorn the University Digital Copy Within forty·ei~jht (48) rloum of its wceipt of
such notic~, tile ClC and eactl CiC University shall (a}cease the display or us':'! of th'.~ Univf.o($ity
Dig,ta! Copy nl "ueh in,Copyright INorks and (b} delete any such !'1·Copyripht. \fVorxs if am;! to tI(~
Q;<tent that such works 'Nere previously prov}deo as part of the University DiGitai Copy.

(C1)
PWmji:§)Jjp.g.f..'~y.?ilable C.;:mi€nt ami Seiected Content No Party to this Agmemel1t shag
no;'!ve Dr cb;(n any r1ghts, titk, vi' ini!3rcst in or to the AVfl!labie Cenren! or the Selected Content
(Le., to th;; !~Eiterif:ls lJnder1ying the digitizaUon process}, except Ifmere such !="arty acquired Q,
Bccuires Hic:il eights, t1tle or interests prior to or independently C1 the peiormanGo of It,is
Agn:)(omenl, Ndhing set Tix(h in this Agreement shail be deemed to tn~ns{er 1;,} any Party any
owne,ship or intelioctuul prope,ty rights In Of to any part of the AvaUabl8 Contnnt or the Selected
C~'}nt8t~t_

{b)
.Q~vn(;'rshiQ of Go!&e Digital Copy. As among the Parties, Gocgie sha!! own all rights,
titl!'), :;ine imoros: in ~mc: to H'IE! Google Digital Copy, subjed to !"fIe ri9hts of ,he copy tight holder
andJor ~~s 1;c0nsBfjs fer parik~H~a:' In.-Copyright V\lorks made a pert of the (!oogle D!f:l;taf Copy.

(~~}

£?.£;-;?ght.§~l:X~~g§.

Subject to the restric1[:)ns set fort~1 in this Ag~€enler;t: Googk; rne.y use
<:IS part or the Govgk)

the GCOf,;!<,J Digital Copy, !n whOI{~ or in pari at Goo~Hf's sole discn~ticn,
Se~"VjC$S.

(b }§m~.f.Qi·I:nq Fm&..!9 the PubHc. To the extr·mt and for so long 8S GO<.lplB uses ail or part of
the Gong:", [);git1c11 Copy in GnnneGtion with the Googio Services, it shail p!"Ovid€ a servic(":! at no
,~()st to En(~ Us~;,"s th~1l {l) permits such End Users to search bot!"", the PtlDiic Domain <~nd In··
Copyright V10r1<s cont~)ined in such part of the Google Digital Cr1py ;'Islng [In ;ndex of the fuH text
or content: {h) displays sHafch results for such PubHc Dornain v\lorks cl!~d h~~Cnpyr~~~ht \/\/Of'ks. i3S
~;et f()rtr'~ ~r: SecUcns 4.3(c} and (d) be~o\jv; and (Hi) serves and displays. t~:e !lJIl text ()r content of
~;Ut;t: Public O·o-rnair;· VVorks.

(e)
.V.~9...QLl?Ubl!~Q DomaiQwW~orks and Certain In~Cm}Ii(Jut.tytf:rr.t§. To the extent portions of
the GC<{~;:lk' Di>;lita! Copy a,.e Of become in the puhlif: dom&in Of, if in COpy-rig!lt, to thf;! extent
GOGgle klS obta~()ed the WriUen permission oithe copyright !1ol{ler, .a'lOglf; shail hi;\vethe right., in
it:::; sole disc,d;on, among other things, to (i) indf.lx the h,!i t{~xt Qf c(}n(en( ofthe Google Digital
CDP)" \il) SePi$ <lIXi display ful!-slzed digital irmlges corresponding to thOSe portions, (lli; make
H'lE:il;Jhif) tuH t"'.xt of content fo, printing and/or (lQwnload, and {iv} make copies of such portions of
the GO(lUle Digitaf Copy and pt(lv!(.1e, iicense, or &<-'.!Ii such copies (inc!l.xEng, wHt:{)ul Hmit2tiofl. to
its sYfld;c~\tfO:-1 partners). To be clear, in the event that Googte has fliJ<,;eiw<,! a "'Kltten ik'Mmw ",
othor writt,}p pem~issiun t'rurn the appEcabte copyright holder to use In-Copynghl Wmks in the
Google Dtniial G"py, Google may lise those ,'forks in allY" manner permitted under the tenns of
sl.Jch iicenso¥ other permissjon,. GOGgle sllail be solely responsible for ensuring il1at its Lise 0)
the GOOglB Diki1tai Copy is authorized by the relevant CQPytight rlOfdem or by applicable l(;lw:,;,
~nc.~~;djng

COff/rigtn La\vs.

5

GOOG05000006

A-664
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 21 of 41

(d)
'.,J-Eisu:;LtJLqll\.QLWOfks . For all other portions or the Goog!e Digi(3) Capy, Google shaH
Hmit ns USc oj' such portions to (i} indexing the ful! text or content or sHch portions. {ii} ser\iing ami
disp!.ay~ng

se.flrt:h results, and (in) servjng and d~spiay~ng text or content. Gontejned in ~:;u·Gt:

portiofl;\;; but, in each case, only it' .and to the extent such u~es. are perrnit\,~d under applicable

Copyr;ght

L~n'\~s.

Google "hal: ilT'<piement £lrd mainiain for ~iO long as the Google
in i~S possession or under its control commercialfy r8<3.$on"lbie physic;:',i and
t.3chnd()fii,~aj mf.iB~"2SS (e.g ... ti'wouf}ll USB of the mbots.txt protOGos) to mstrict \.w3uthoi"ized adom~ted
(1eC0$S to any porticn of thB (bogie Digita; Cnpy that is !n-cnpyrighL in addition, (;009\8 s~laH maint3in
or: i~s yveb.slte 8 privecy poHcy that governs the collection,. use and disclosure of informf.I!i<;n U1ct Google
44

Digitt~i

Copy

f?fu'i~r.\ty".f,X!.q...?r.\~:§£Y..

rf~,,',(':ir,s

obtm!ns fron: End Us<"rs,
,~.5
2~VF"'SI-jo and CGr1!r9LQf..Gg9.£i[g..§9..)1!f.{;l.~ As 8lT,ong the Parties, tj'fe (-;(ltlgle St~~vice$
<"!I ,~.0ntent trmrdn am, ami at. all times wil! fernarD, the exclusive pro;;efty of GO<.Jtie or its panna,s:
not.hin{'l in (r'!is Agreement implies any transfer to the CIG Administrative OfHcos or any elc Univli)f'sityof
any ownership intersst in the Gnogle Serv!;;es. The CIG 1\r..irninistmlivIJ Offices !:lrId ead1 CIC Ur,ivsrsity
acknowledge a,'~d 8fif$$ that GO(lfi!B retains control of the Google Serv~ces, ~,nd that ihe desifF\ layout,
content, f!1nctlon~; $'16 features of t!";e Google Services ,,~re at Googl0's diH~retiQn, Notwithstanding
anything to the contrary ,n this Agreement. Googie is not required to make any Qr ali oi tJ10 8oog!e Digj(al
,~r\d

Copy av~Hab~e through the Googls Serv~ces.
(8)
Thn:ughot;! the Term, GQogi~, wHi provide &oarch~!bie access to the G'Jogie Digita: Copy
for ina CIG Universities, their patrons, researchers and staff via a wet)srtc) GGs:,:;(l by GoogkJ (be
"Hosted So!utkm"}. T(~ t!-,e extent ponions of the Gc.)cQ!e Dlgit$; Copy ere Of becomB in the
pubgc dOfT:a:~1 cr, if in COPYflfihL to t11E! extent Google has obtained the ,",,'fitten perrnissio!! of tt10
copyright holdo., GOOflie wlH 0 serve and dispiay to users or the Hosted Solution fuli-sized Gigitai
~r'nag~s c()rr~:;sp{)ndln9 to those po:tions, and (ii) rr!c;ke cJvadab~e tv users of the Husted So;uton
full t01d of G.if,{e,',[ fOI" download. Far aU other portions of t~\e Goog(e Digi1B; Copy, GOOgiH shaii

serve £Hid dls.piay' search resuits and text
Ccpydgt-rt l~:;\t¥s.
(0)

()f

conh~nt t!n~y

,he Hosted Scl'I.,tior; 'NiH be provided Bt

Pi)

to the

~)xte:tt

pem1itted under appHcabfe

Charge to the CiC or the CIC Universities.

(G)
The d"'$ig~!. !"'}lout, conted, functions, ft:JahH{~S, reliability 2nd performance of the Hosted
SOlutions wi!! be delerrnineci by Googk; but substantially similar in quality and efficiency to that
prov!de{i by Gocgl<:; to any Otller Library,
(d)
Dudng ~h{.~ T;:!!rrrL a C~C University nlay repol-t prob~erns ~vvjth the Hosh;c Soh)tlQn to
Gooilie's tevhnica~ cont<.:d and the Parties 'wm INcrk. to resolve suvh problems in a cornmerdaiiy

w<lson<:'Jble Ume and lrwmer.
4. 7

\JniYi;lf.~;jj,y maltal CODY aD.Qj;;~i~!;@JbDJQQLQ{g,~fr.Q:#..

(~)

DeflniiJ2D,-9L1tnJy?rsify Digital Com:::' Unless otr!61WiS$ ,,1;;r<3ed by In'3 P~!rlies in writing,
the. term "University Digital C9PY," as uSeOln this Agrecment, meBns B copy of the Seklc\cct
Content Digitiz{,'<! by Gocglil. The Universily Djgjt~Ji Copy wi!! cqnsist of (<'J) aSt~t 01' image tmd
OCR files. {b) associek,d rnetu-inronnation ab-ol!( the flies such as which irna~le fiJes correspond

to Umi D!gWzed w-:xk, and (c) the logical order of those lmage files,
UniV<lfsity D:gITal Copy as pert of the Proiect

Goagle w'ill c:6clie the

(b)
t~\Q·;ZN.. .n.?R.9.g\t
A$ Goog\o "Sl!>zC'dssfdly processes" !he work.s (.7Jr,t;;lined in tha
Selected Content, Google wi!l place tile UniverSity Digital Copy of such Selected Contef1t In
escrow on ~, SE:cure serve,' maintained by Goog[e 21t Google's cost and expense, For purposes or
tiiis S('!ctiOf' 4J(i:J), GOoglf; will have "Success!Ully PrQfessed" Ulf; works ,"~{)nt;>in~;d in the
Sdevted Content wheil 800gie det~mnjnes it has satisfactoriiy gonH th,ough ail stages d
GOOgle'H Di-g!t,zatiDn, pnsl pr:x-;essing and quaHly assurance procedures. Tilf; portions of the
Unlversity Digit;>; Copy that are in eSCro'N are her.einafter referred to as the "tJl£LQWQi::\Q9.§i.\"

GOOG05000007

A-665
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 22 of 41

(C)
nQitg~J,gLY'l9r~~Ltlf!!iJ.DJ;g!r9~:t. Google will ma!<:e one c:opy of ttlt'J works jn the Escrow
Depmit ~ivaHaQkl for download by ti'w CIC Qr Source ClC Umversities ~lS sei forth h SecUons 4.8
through 4. '~1

beh)~v.

(d}
{'mr;.~!l:ifj:. Fm' so :Orlg as Google maintains sllel, eser;)w, Goa9!~! she;; implement 0nd
mairltail1 commen:':!<:l!iy reasonable physical and technologicel meaSlW,":; to proted the Escrow
Depcsit lrorl'l U13Lit~lorizH<l access, copying, use 0: disclosllre.
(e)
Ql-.gr@:y~ (,oogI0 will provide the CIG Administrative Offic<~s Of a SO:Jn::a CIC University
with lh." ~lbim.y to sample the fiies fo, one hundred (iOO) Di9itized works per quaner to assess
scanning quality
4.8

R~1.§,,!>;f,9LlJtlb!l?n'ityQlgJai COPY of Public Domain

(a)
l"omhs

IlrWLlfl of Release,

WQlt:;L

In 3 limeframe n1dtuaily agreed by th'l Parties, but not to exceed six
thB daif) cf scanning, Google agrees to make each Successfully PmcBssed Public
Dorm:in We",,- contained in the Escrcw Deposit 8v<.'Jilableior jownloact~ng bV the appllcable
Source C~C 1.):1iversii),",
f~{j:n

(b)
QQW,,1L98dir,a Public Domain WOfk,~. This release of the PUDIir: Domain '.Norks from the
Escrev,,' Of}pos.it shail allow for, at the discretion of the Source C1C University, t(;"lnsfe!' to either BJ
a secure se!",jf.W ::xmflgured f(;, such a purpose at the Source CIC University: or b} :secure servers
maintain&d and managed by a ClC Hosting Library (as defined in Section 4,13 below) 00 oehi-l[f

of C~(;

U;l~vf.H·siHes,

(c}
£l,!2L9~,DQrl?}n Works Digitized as ParLQt..9.\O.~LE£oie(~s. For 'eaj;!y defined public
domain Selected Content held by one G, several GIC Universities, but already digitized by Google
fn:HY: ~~oun::G Hor".:ries ouiskle ~he CiC ~N;thout any restrlcticns on distrlbutk)f\ f.;oog~e at ~ts
disG:etbn may (hgitiz.e such ,vorks again using the copy from G C!C Un!vetdty Ci:' provide <l di£!!tal
copy d:'awn 'fr:.;m anothe; fibrary beyono the CIC.

4,9

W!?Lf.;§.. tlP.!f?,mtt "md Works Df U!,)Y.9111i!.itlhfill1lflbl Status

(~l)
V;Jorhs ID..J~I.1~Dutft, N{)tvdiihsta11d~ng anything to the contra!}.' hBre!t\ {30CQle n:$Y ~~vithhi)~t!
or <iei~iY ..eleas(~ of ani works llot clearly in the pubU{; dornaifl from rneEscrrNl Deposit if Goog!e's
0igiUz.c.itkw, use or reiease of' sud, work is the su.QieGt of "l dispu'e oe\weer: GO{)fli€ and a thirc!
pm'ty. h sud' [want, Goog!e rmJst !dorm the C1C l\dmbis1rati;:l'l Offi>::.es or the, Source CiG
UniVersity, in \8riting, of the SPecific work(s) being withheld and til~' <:ielai!s of the {lispute. if such
pO:-tiNIl> at tl:r:; Univefsity Digital Copy have previous:y beer: relei:lS$(i to an~{ GIC University under
this .Agreemfj·nt, thv,'l that CIC University agn".Bs Ie {felete or de~>troy nny sLlch portions of J:e
Univer~>ily DigJal Copy in its possession or under its controL

W<:tl<g~.'?f Uncertain CocYrEgtt! Status, The terms of Seckm 4,1 (b} r:olwithstanding, tl1e
CiC Univeisit>, shaH have [htl rigtlt \0 claim access to any Sl<ccessful!y Proces,md work
inciuderf in thG Selected Content thai is not subject to any dispute that It deems to he in the publio

(b)

S(liH(;€

b.~:t 'Nh~G'l GO{..'gle believes is not ciearly in the public dom.3in, if the Source ClC
UniV(;;,sit}( Ii} provides (300g1e wittl <'Jcceptable evidetKf.l (hat Ul$ vil()r~, is in the puhik: <loma~n and
(ii} pwvides a written U':}!i'1rrHlmenl to ir)oemnify orotherw!se assume full liability tor any dalrns

d001<,dn,

arising from sllcbaceess to trwt wnrk along with assuranoe accepllibie toGoog~e that <my claim
:'csult;ng iron"; sueh access ~mder such assumption .of iiabiHly wi!! be satisfled,
.

4, i 0

~illi.iF.;,§i.W.Q.\g\!gLg9.p'y..',!f)1l~,r.;9.J,1J:r.i,g,btWgf.~,$.,

fB)
in... Ql~r.l.ggl!., ,;:'s noted in Section 4,1 above, Google may, in 1Nays consistent with
appilcabb C:,pyrig!'lt Law, select anc D1g11i:<:e In"('.!)pyrigl'lt Works:. c<JntaineCi m the Selec.tee
Gon(0nt. Swch works wi!! be pari of the UniverSity Digital Copy and, as such, the Digilll~;d flies
\lllH b<J I'nwntgined :(1 escmw ns set forltl in Scotion 4,7 ab{)veand released to the S{)UfCe CIC
Unlve,siiyas ;'Jei fmthin Section 4.11. UnW SLlch l.ime as these In-Copyright \!Varks are released:
Goog!e agH'lB5 to p~ovida CIC Universities with se;;rfchable access to slich In-Copyright \iVo:ks as
described in Sed\on 4.6 soove,

7

GOOG05000008

A-666
Case 1:05-cv-08136-DC Document 1053-3

(b)

U~LQLln-C01Jvright

Works. Google

Filed 08/03/12 Page 23 of 41

wm provide the GiG Mministrative t)filces with a !lsI.

of ~hu In-C:w;q,ht Wmks contained in the Escrow Deposit.

4.11
.Re!eari~_~lL~I:Ggp.Yilllilt Wmk..<; Held in Es.ri9.J.'L. Subject to [hE) j(~rms of this Sedicm 4 G00gle
qye(:;s to enBbie down!Qad capabihty from the escrow to th.~ C!C Administ'2.t!Ve Offices or t'ne applicat}ie
SGurc~> eiC University for Q!lf3 copy d the digltal me for any b-Copyright 'Nork(s) hold in e:-;cruw tn the
8V{mt that any of inc foHf)wing mimosa conditions (oa('.11, a "Bel ease Cond!tion") occurs:
(~!}

the b·C;:,yyrigh( V<,Iork becomes in the public domain;

(bi a Party hs", obialned permission through contractuai 8{)reen1E'nts v>fHr~ copyr\lht holders that
inckctes Ih", right 10 make (l copy of the In-Copyrigh1 Work and to provide it to the elc or Source
efC Ur:l'\.)~~tsjty;
i~:w exists that In-Copyright Works can bE! copiod and hOld by tl:n GIC
Offices and/or the SOUia: GiG University without irlfringing on the rif!t,ts !:)f B

(c) weI! BsrBi:<iisr..oo case
i\{!~'{l~n;Si.:;3tjv,,!

cop}1"~ght

ho1dc:;

(d) if at eny ti,,"~e Google is in materia! breach of its obligations under Section 4.:~(h) or 4.6(&) and
Googie does net remedy any such failure within ninety (90) days after its O,':currence (or, in the
twent such falii.lre is caused by' technical problems or C',,"Iuses similar to those d",scribed in Secton
12.5, within sucr: lonner period as Coogle, working diilgenUy, reasonSbly requires to remedy such
problems;; ,:of
(t;) tho CIC ,~,(jlTEliistrt;tivB Offices or the SO\JI"ce etC University "n,l Goo·gl" "gree in wriling lh.a\
the rele<.1S0 {;j' ~, p~ji'h;ul",r in-Copyr~gh! Vvork 0, V.forks is iegally s\'i;)ported ami Eppmpriate ,moer
the i8r:n!~ {;f this Agreernent

ThO! G1G ,;:',{!l11inistra!i;,(~ Offices or the Source CiC University may provice 'NriUen notice to Googie if it
bellfiVes (r1c)i a R,;iq'<lc.;e Concilian has occurred, which notice wiH describe SliGh Releaso Condition to
Goog!l;l. GOCg!f~ 'wm ,-;(wbi", fn€ downloading of such In-Copyright Vllork.s SG tong as Google is reasonably
sstsfied that the ReleBse COI"ditbn has occu,red. GOOg!0 may also enable ti'~e downbading of ir'"
COpyrip!1t. i/'/();KS {in 8 f<:&nne" and timeframe deemed reasonablo by thB Pariit~s.} if it f:}iccts 10 u"a,,0
holding t'ne In-Copyeight VVorks in escrow. Ail in-Copyright \N'Jrks provided un:.!",:- UI'S S!3ction 4. '1') wHI b:1
uS~jd

only as nHo\>v-ed uf:dar

Sect~on

4."14.

412
UW!10f>ih;) aL..!'!.Ei'{~r:;!tyQiQit~i Cooy.
As among the Parties, ('mD ~;,)bject to the
f0s\nctkms in th!» S,,-;;iiGn <; and the rights of the copyright r,dders and thf;lir Hcense~'B, each Source C!C
Univofsily sh",[! ovm i'Jl~ rightB, @e, and t:1teres(s in and to the University Digital Copy of the Selected
Content prcvided by su{',,, SourC'.B GIC University. VI/jthout limitilig the foregOing. (leitf;er ti,e CiC nor (;In}'
C[C UniVersity silaH disp.18y or otherwise USe the University Digital Copy ei(cept ;:,s expressly pelmittf~d in
th!s AgmBm;:)ni, or i!l subst,quer~t ,witter! agreements with Google.
.

4.1 ~~
~~.Q.;J;.;d9.~gtr!.r:.. gf..hJ.Oi.Y.§f.§j1y...Q!filtgJ...g9.P'~: ..tg...~ ..g.0.nt.c:§L.Q.gP.Q:~t!QI.Y.. Subje~t to the tr~rrns of
this SBction 4, each GIG University shaH have the right tocolliribute ell or porUo08 of lis Public Domain
\Nnrks contait,ed in the Univers:ty Digital Gopy toa joint depOSitory 01' depOSitories of difj!ta: WOf;':S hosted
by 0»$ or more {;If ih~ CLC Url!v$tslty libraries {Sll('.h libraries are refelted t.o ;,erein as the "Hostinc
t,it,~r.?[hl1n
Pr!~x to the provision of Public Domain Works to any such Hosting Library, the CIC
Universltles partlt;ipaEng in the joint deposilory and the Hosting Libraries shail have odored into", written
tlgreement ;,md shaH hevepto\fided B copy of that agreement to Google, INhotl agreement shaE (e)
contain limitations on the Hosting Libraries' llse .and distribution of Ih€dJniversity Di~;ita' Copy that an~ at
k,~~st as restrictivB 3S tb.t limitations placed on the GIG Universities' use arid distribution of tim Ui1ivBfSity
Dlgltal Cnpy under this Agreement (lncluding the restrictions set forth in Section 4.14 herein); (b)
exp,,~ssly nmne COri{jle as a third party beneficiary of thal aweemf1nt tor ttl(, purpose (~f ~~nf()rdt,g slleh
restrictions; \Z:) pool/de" written commitment to indemnify or otllerwise am,ume fuH HabWty for any claims
arii2!iflG from the HGsling Libraries' use anti distribution of lne University Digital Cnpy (Jlong with aSSWTince
acceptabb to Gocgil:) that any c!airn resulting fromsLlch lJSe and distribuh:m under such assllmption of
liai)iiity wi!1 b'~ sat!sfiuKi; and (d) require the Hosting Libraries to identify the works in the University Digital
Gopy, in <l statement on the app~lcab!e web page or othel' access point, as "Digitized by GOGg!e" or in a
substantially simibr !T~anner.

8

GOOG05000009

A-667
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 24 of 41

(a)
Each S~3:Jrce C~C UnhN3rsity shaH have the right to use the Un~ve·rs~ty' r)~gg;:sl (~oPV of tile·
Seif,cbd Content provided by such SOLIrC€ CIC University, ii~ \Nhoh~ C{ in P<l!1, at the CIC
Umve,sity's SQ!", discreUon, subject to applicable Copyright Laws, as p.'!lrt of s€rvices offered 0"
the GiC Un;v('lrs11y's 'Nebsite to advanw its aCa{if)mic purpes",s to ';;.;ppOft 1!:6 instruction,
,'Bsean::h ami sCflolms?lip of ;ts campus community.
(1:;)
Tho C1C Univefsities fllay not charge or receive payment ~y other consideration lor lh,')
use of the Unlv0rs:ly Digital Copy witl'lout the express written consent of GOOgJf.l except that ihe
CiC Ufllversities mEly recover from its end users costs for prlnt and copying s~m'i(:es.
(c)
The CIC and eacr'1 ClC UdV9mity agrees h"lat !o the 6;<\ent it makes any pmtior. of the
Univ,;}!'srry Di£jital Copy publicly availabif::, it wi!! identify the wmks, In a st3ternent en a web page
m' other access p<:,int to be mutually agreed to by me Parties.

a~;

'Digitized by G(mgle" 0: in a

subsh:::ntlnny slrnilBr rn8r:ner,
(d;
The CiC Universities shaH implement technological lTleasures (e.g., through use of the
robot::Ltxt VdoWl) to restrict automated access to any portion of the Un;V0~'s;ty Digits; Copy or
tiN] prtirm" d thH GlC Univfirs;ty website on vhich any portion of the University Digital Copy is
available. Tn;;! GIG Universities shaH also take reasonable steps to prevent third pirlies from
downioadinn Gr ot10fwise obtahl:lfJ arlY p{)ftion of its University Digit;::i Copy for commercial
purposes, (ii) redistributing any portions of the University Digita! Copy, Dr (iii) Elutornat(.><J and
s~'slemBti(; downloading from its website image mes from the UniW1fsity Digital Copy. Eaeh CIC
University sh,~!! develop me!ncds and systems fot ensuring that SUbstantial portions of thB
;.hiva(sity Digital COPy' arB not downloaded from the servkes oifered on jhe CIG University's
websiie rx otherv~ise disseminat€~~ to the public at large. Each CIC University shall also
implement S€<::wri(y and handling procedures for the University Digital Copy >Nhich procedures
shan be :-fH.,ibJ-Ed!y agreed upon b~( Ule P~uth:;:s. ExcePt as expr~~!s$ht 8.Hov'lf:.K! hS:lfe~nt the C!C
f\drn;n;strE.~t\.,'~:; ()fHces a~~d C~C Ur;~vefs~Ves- vviH not sha're~ provide: Ec;nsn, rH' sen any pOft~on of
tt:£ Unh/ergjty D!{1ita[ Copy to En)l third party 1:'/~ihout the express vvntier:. conser:t of fJoogle.

n

<US
§!Fyi\'i':\L The PaMies' obligations under this Section <1 shall S'lPlive l~1fi expi:';''ltinn Qr
lerrn!naHon of this Agrr"ff.ment: except. that (a) Section 4,1(0) wi1l terminate at the (}xpiraiion or terrninatbn
of ihis Agreement (::1; Section 4,$ \8ilE survive for [-'is long as Google continues to hoic! the Escrow
Dep<lsii, ancl (C) G,')qi;e's Of-;!i{]Btlor'ls related to the escrow wi!! survive ;;1'til the Escrow Deposit is
released purSl.lanl ,0 a Rf;i!;;ase Condition or othervvise as set forth in Sect;Qn 4_ j -~,

5,

ACCESS. JflrrHORIZATION AND SUPPORT

5.1
ACGB>ss. Google shail have the right to access Selected Content during the Source CIC
Unive;say'c> ~)usinsss;'stE;H heurs as mqulred to exercise its fights and perform Hs obiigatiGl1s 11E:reUrl{ier.
!f requ€stHd tJy G();}·;t~, lhB SOUrCf) CIC University shall make cormnerci(,lgy reas{)nab~e efforts to provide
GOGgle with access to Selected Content outside of the Source CIC University's business hours prowJed
th<'Jl GOQgle notifies tilB Source CIC University at least two (2) days in a,1vance of its intent !o aocess such
ll"ralerials.
5.2

Auti'kl<:!Zation. TMe CIG 'Nill designate a single GlG University pro~1rarn manager who will

br;: subject to Googids reason81ble approv?L The CiC Un~ver$jt)' pro9fC\!f: i'lWfiager, wo,klng in
conjunction with the CiC i\dITiinistrativ{) Offices~ is responsible for tile Seler;ied Content involved in any
Project Plnl'i find she;! 1';;3\10 authority to agrel~ with Goog!e Bnd CiC Pi'Ojec! fvlB;1agement Staff on ~he time

h,'lmes "md pmcee!un,;s (6_9_. coHection, conservation, and handling} ,,,ssociated with th",t Selected
Content. If Googi;;; in ~!ODd faith be~ieves t!:ai the time fr:Ejm~s and pro,X:CUff;;S requested by lhe CIC
University pW\;F'arri fri"tnager and/or the ClC are unreasonable, Google shall escr.-1iaie the matter tG CIC
Ur~ivwsily P,'ojeGt Lead (as described below); in whicl, case Goog!e and tho CIC University Pmje!:t Lead
shall confer toresoive thH iss;m. The C1CUniversity Pmject Lead wi!! <;lise be deSignated by theCIC and
wiH be subjcci to Goog.ie's reasonable approval. The GIG Uni\l{~fsity Project Lead 'NiH be e sin~l!e
individuBi who wi!i sety", as the single point of contact for an communications rE%ting tc; the ProJect The

GOOG05000010

A-668
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 25 of 41

GIG Proj(,(;j leg(j wiii t;e resprJf1sible f(x ,Jislrilwting information t.o the (;Ppfoixia(a individuHis 0: woups at
the CIC Unlversitif», End fo,' communi(".ating inhxmatbn back to Googla, The C!C University Proj()ct
LfJ1'id wll! aiso t,e ff)sponslble for identfylng em appropriate alternative point of conwct fo:' instancf.-;S when
(16) or :,iH,l k, not BVi.l~l"'l)f~.~ m is :)oi th~ appropriate contact ar,d the alternativE< Cf.,ntact '.fAll be re~,roi"<Sible
ior di~,tribiJtinp ttl«

infor~nation

to tile GiG Universities.

5,3
~3tn)Q9£. ThB CIC Ad:-n~nistrattv6' Of11·ces ~~f)aH also appoint on(~ pers(H'; to serve t~S tr.1€
;;;drninistmtive COfrt",(;t 'iiof Goo;)gie, should aomiflistfi'Jtive qw;sUons or issues arise during the Tern, of this
f\.gl"emnenL Thill <ldrninistrativ<:; t;Oill<1Ct shan Of} aV<:1ilable d~lrlng regular tH.I$1n€:~;$ hO~if$ (9;00 a,rn. to
5:0Q p,m" IAonday through Friday) for the GIC Administrative Offices at B telepi"IOne number anti a-mail
:;;dtiwss ~o (>~) pmvldf;d by the CIC Mminisir8tive Offices. Eaerl GIC University sha:!! also appoint 011e
persoil to S{NW; <lS ihe teehni.cai contact for Goo~lle for obtaining and regulating ti,e use of the University
Digital Copy. This tecrmic<'li contact shan be available during ,egular business hours kr g,at CIC
Univendy at a telephone numbw and e-mall address to be provided by the GiC Uni'"ersity. Upon
execution of this ;\ireement, Google and each Gle University shaH identify U',ese individuals in writing,
'whkh may DB em~:'l\l

6,

CONFIDENTiAUTY'

6:1
DQgfjIientaiitv,
Disc!osure of confidentlal and/or proprietary :0yorrnalEon disclosed
hemuncier, incluclntj lhe ex\"teGGe and contC'1t of the Agreement and any informato:l provided purSLiant
to ttH; Agreeme'lt. shaii he govemed by ti1€! c(lnfidentla!1ty provisi(.JflS of mutual l'!1;mdisdosure
egreements, INn;ch have bf::er. executed by the Paliies prior to lh<~ execl~k:n of t!11S Agreement {the
"NDA"), The (,;onridemiality provisions of the NDA are hereby incorporated by mfm~Jnce into this
Agreernent. ~n acc.ordance \v~th U'~e terms of the NDA, by execution of thts Agre)o~!llfH1t f;2Cfl P.erty
ry{'),ddes to the nth",r P8rtles advance I;vritlen approval ror rele,,:se of trle executed Agteement as a put}iic
docurne~lt lr. a Un,err;"rne and ")",snner to be> ;-nl,t~JaH'l agrf:!€'d 10 by the Parties,

6.2
fg· No F'<lriy 'N,il issLie Bny pubiic announcement ,egarrJhg th9 (,xista',ce Of Gonn:;:,t of
thj:s Ag(tr.:!r(;;~nt ~v~thtH..:t the oUler Pc:"ty's prior ~vriHen approval. N()t\}J~thst8ndlng tht? f~::regoh'1{L subject to
the terh~S of Sect~cn "" be!o\f~(, (30o~J~e :nay inciude C~C Brand Features .a.n%r a (:'IC Ur:iV&rs;t~ls 8rend
Fefltwes in presen1'i.ll.k"ls, rn<lfh~ting materia!s, and customer liSLS during the Torrn so long as Google hsl
[wr!shes the ClC tndh), the CIC University 'wiih specific exam pies of such p:-est:;ntai;ons, rna:-keting
maleriais, and GUslm-n<.,r .!ists end obtains the CIC Of ibe CiC University's 'A<ritten apwov8l, ,vhk.:h Hppmval
may tm withheld at \he C!C's or such G1G University's $0,$ discretion, and prO\ri;:.!r~o Googk'i u"es th(-j
B,<)nd Fea;urB,~ on!y in a manner that is substantially simila! to the ravie"Ned and approved uses, Upon
request by ~he GiG Adrninistretlve Offices Of a CIC Univer'slty, Google will fumish a sampie of such llsage,
Gc.ogie shan not u;:,," the G!C or C!C Uf,jvorsities' 8rand Features in a manner ttlat m!:-;represents the
n;JaEonship anH'..H1g· t.he P8rHes or !iY:pHes t!'1at the CIC or any etC Universjt~i end<J;'"ses GOCg{f/S products
or services.

7.

BRAND fEATURES
QWLl?L~iliD. EflGfl Party shal! own all ri~lt,t, titie and

interest reiatl:,g to its 8rMa Features.
Brand
FeatureH
a,e
bC~lk,<i
at:
Ut.liby.WYi;99{jgiJiY,:f!JLt.fm;T);,a[q.'.~JT.f.~\t~iT'.q.'t,-?},t.0.i. (n, such other URU. Go09:e mgy provide from time
to time), Except 10 Hmlimited extent nxpressly provided in this Agreerne,J, flt.'dher Pa<!y ~;rant$, and the
otnw Party sh"U not <wquiro, «l'W right. title or interest (lncludirg, without ilmlt8t!on, Bny itl'lpHac! Hearse) in
or to (lny 8n1f){.i fnatwes of ti1e flrst Party: and all rights not expressly granted herein me de,:;med
'Nitr(held. AI! use by Googlo nf CiC or CIG Universfty Brand Features (including any fpodwll! associated
therewith) sl'ar; imw3 10 the benefit of the ClC University BndaH use by a CIC University u,' ClC 0'1 Googif:
Brand Fe~tuf"iS \In::}uding ~my goodwill associated therewith} shaH ifB~m to the benefit of Go"gle. No
Party shaH ,~han8"gH or assist others to challenge the 8rand Features of the ether P<Jrty (0XC~,pt to protect
such Party's ffgrlh ',Nit!: respect to its c,wn Brand Features} or the registration thereof by the other P(lrty,
nor. shaH f;ith~~r P<::rly attempt teo register any Brand Features or (lorna!:") names that 8,>;l confusingly similar
to (hosfi of thB oirlHi Party. E.acl, Party shaH display symbols and r;·otice(l dearly ,:nd sufficiently
indlcating thetradern<'Jxk s:atlJ~, (,nd owners!lip of the otiler Parties' Brand Feature~" Nl} party si'laH modify
Son~e.

7 ,1
bt;t

not

ali

Bxmnples

of

G{)ogfe

10

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or a~ter another Perty'?} 8rftnC Featuros or use a Bmnd Fealllre of anotr!er Party in combination with ntht"
1rad~)marks Of CW£1to a unitary- composite tr<'Jderni!lrk involving e:rJolher Party's Brand Fec11lJreS W'W1OUt tne
0rio,' written consent t)f tt1<iJ other P~rty, which consent rm:y t)e witl1~\eld in such ()tlwr Farly's sob ami
$tn:;O;utr;1 (n$cn~:hor;,

7 ,;{

i"!G§mi~n.K,g.!g"Vnj.":E@jlY- Brand Fe5ltuniiS.

Subject to bw terms ~,nd conditions of this

l~greem~n!, GooGie, caci'! ClC Unil/ersity, and CIG grants to the other Parties a linded, nonexclusive,

pBf'sonai and non::HJblicensable, royaily-free license curing the Term to dis;iiay those of i!.s Bmnd
Features expressly t-lvlhodzed for use in this Agreement, solely for the purposes m::pressiy set forth
h<'lrl:ln. j'btwithstflf1r.hg 2nyth1r:g !.O the contrapr any Party may revok.e lbe ilcense ;;;ranted herein i;::, use
Hlat !l<',rty's Brand "'%imes upon providing the other Parties with written notice thel'fiof and a
pBriod ,Jj hne f,;, cease such l.lsape,

S,

n:;8s()nablr~

TERM AND TERMINATION

8,'1
Te,m, Tn:s Agreement is efiedive as 01 the Eff(;lcrive Date aed contleues in full force and
dfl:!ct for a period of six (6) years, wnless earlier terminated as provided hereh (the "Initial Term"). Upon
the e>:plraHon nf tilG l:"lltia! Tr~El"<, this Agreement sl1aH automatically t'enew far additionai Of16 year terms
{eacll a "R~n~waJ Term") ~miess eilher Party notit'ies the oHler Party to tile mmrary at least thirty (:?O)
(ii'!Ys before the en(! vf i;;itMr th~ initial Tem: Of' a Ren,hval Term, The "Term" of this Agmement st-;a!j
comprise th) hili;;;l T
anr.i i.ny Renewal Terrns.

,;n,;

B.2I!?rr0.\i1.ft!rm. Any P2:!iy rnay suspend performance Bndior terminale tt1is Agreement: (i)
if ;another Party '::;:1k~riaiiy bfe~lches any material term or cOl1ditiQf1 of th,s Agreement 8nc fails to cure
slich breach wiU'lin thi~·ty (3G) days after receiving written notice thereof; Of (ii) if another Pafty becomes
lnsn1vent or rnakes ~:H·~}i Hssignr:1ont for the benefit of cred~tors or s£:nifar transfer ,:'1v!dnncing l~sojvenc)( . or
$ufh~rs or penr:~ts tn(:; Gl>:nnH~)nC0rn-::3nt of any forn: of insolvency or feCe!VerSfj~p p;t")(~e~xHnf:f, or flas any
pemiol'1 uflder i"Janb,plC'y i2lw j'iled against it, which petitlcn ;$ not dismi$s!;IC w;Fh sixty (I3n) days of such
rlnng, or ilBS a (w"lee, adrninis!ratgf (}f receivBr appointed for its business or assets !)f ~;H1Y pari Ux;!'oo'; or
8.3
F,:flf-~:t(A.. f,:>;p..i.r.§1\Q.(uJL.I.~fm.(G.91ion. Within thlfty (30) dc:ys after expimtion Gr ierminaiiGrl
d lhis Agrt;f!;nenf for any rease'il, 0ClCh Party shall return !o the other Par(y {m, at that Party's mquesl,
tiestroy) any Confic,"ntial Inklr:"l1ation of that PartY' that is in its possession. The 'following sections survive
expirHUon or km:inc1tkm of this Agreernent: L 4.15,6, 7.1, 8; 8, 10, ~ 1 2.110 12.

fL

WARRANTiES AND DiSCLAIMER

9,';
.M~lJgLYj1J'Tanties, Googie, ClC, and each CiC Unive,slty represent and WBrrant that (i)
it hUs full powu: urld t."JH~(}rity l\) <'mter into thls Agreernef1l end to perform iis obiipahO:"l~, hereut'i(ier; and
(ill this Agre=.:;rncni ci;'nstitutes ltsvaHc <md hinding obligation, el"lforceabieagainst it:n alJCl)rdance v/thils
tG1'!l"ls.

92
piS!2lrtimel:, THE WARRANTIES EXPUCITLY SET FORTH ,.~,f3bVE J\RE THE ONLY
VVARRANT!ES PROViDED HEREiN AND ARE IN LIEU OF ALL OTHER \Nf'\.RR/I,NTIES BY tHE
PARTIES, EXPRESS Of~ iMPLIED, INCLUDING ANY lMPUED WARRANTY OF MERCHANTABiLITY,
TITLE, OR F!TNESS FOR l" PP.,RT1CULAR PURPOSE, WiTH RESPECT TO THE SUBJECT MATTER
OF THIS AGREEMENT, WlTHOUTUMl"fINGTHE GENERALITY OF THE FOREGOlNG, EACH PftP.TY
SPEClFiCALLY D1SCL,\lf'AS ANY WAF~P,ANTY REGARDING NON~lNFf-.1lNGEf<flENT OF THIRD PARTY
[NTELLECrUAL PROPERTY.

11

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10.1
J2illjJitcWi of US0. As used in thi$ Section 10, the word "use" med'lt, Gopyinp, distritJutir-g,
publicly cHsp'aying, p:.JtJlic!y per(nrm!ng, creating derilmtive works, :md an other USB.
§!LDgpctfl. Gnogst) shaH, at <300gle'5 sole cost and expense, defenc the C!C and the
governinG boards, officers, employees, and agenls (w!it)ctively, the
"c!e lndf;rnnltf;Q.t?,n against any ::JemalYl, clairn, aclion. suit, Dr oth£[' proceeding arIsing out of or in
r;onneci;on with a"y daim asserted by any third party against a CIC !ndemnltee 61k;'91n9 Hwt any ,y all or
the fu!lowing cor:sHt~.!;e the ;nfringement of the intellectual property rights of any thkd party~ (a) the CiC Of
iO.2

c~e Univf:.irstU(im <md thm mspecti'/~)

the CiC Uni'/ersities' making the l\~'3ilable Cnnten! and the Selected Content av",i:a;J!e i.o Google for
Di{litizatior; {<Jniy to lh) (:jx((~n! tf!al such provlsklP of Available Contet'lt is sl!et1ed to be (1~mct. or second.ary
copyright infringt)ment); (b) Googk,'s DigililaUon of Selected Content, (c) Coogle's use of the Google
Di';Jrlal C,op>" ~nc!tldir:!;i ~;tld1 wsr:; by a third party; provided, however, that the fcn:;g{)ir:g indemn!ficatlcn
exclLa:!es any ihird-02r:y clsim to the ex.tent 1t is based 0,1 or otherwise arises out of US·8 Df any portion of
the Univers;-(y Digital Copy by Hl€ CiC Universities, by any Hosting Library or (',ny other Ul!rd p~lrty after
slich portlon r\fl~> b~~<m t:ownloadetj from escrow by or at the direction of the GtC $ourc$ University.
Google Sh8H seie<~', (;oupse! raBstmably appropriate for sllch defense and shag pay such cOl1nsei's foos
2nd dlsbursemsnts ;gnO aH oosts 8:Jd expenses of surt. Universities or CIC may p~lrticlpalt;; ;n !he defense
with counsel ()f their mvr, choice, at tr!eir own cost and expense,

iO.3
i?y... r;:?&i1Q!G,_Vlliversitv. Consistent with and subject to H'le requirements and limitations
of the !aws of the filiCic onde,' w(1icl1 it is organiz.ed, each CIC University (the ·'Q'!Q..Jml§,rr:f1itor"} shall
cefend Goog;e ;;:!'Hi \1S riirecto(s, officers., employees, and agents (cOl!e.:::tl'J81y. the "Coogie
Indernnite0\~n (Jga\!lst any (jsmand, ciaim, action, suit or othel- proc(:$dlng to the extent arising Ollt of or
in connection with ",ny claim asserted by any lhird party against a Google bce'l'I:liloo 8!!eg'n~llhd <:In)' or
ail O'f tn8 foilowing eonsiitures the infrinGement of the i!'lleHectu81 property rights of any third party: (a)
sucil CIG indelnnito(.s use of 8r:j' portion of the University Digltal Copy after SUGh portion has been

Qown!o<1Jtjed fmm t;')." el;cro'N described it~ Sf.;d,on 4.7, andior {t} use by any third party (including any
Hosting Library) of HKl iJ,,)v!:".tsity Digital Copy of the Seif)cted Content prowJed by suoh CiC University
aft,}!, such porU:,m (A t'lfJ University Digital Copy has been downkl,-,ded from the ,,,sC;:OVl/ described in
Section 4]. 1'0 be ol%r, til€ f<,Xegoing inder,mific,3tion excludes any third party ciaim th,j[ miates to tile
eSCfO~'V d8S~~fir){::d in Sect.;on 4.7 above or the Hosting Solution described in Section 4.6. ~f H Hlird pBrty
d.lim covered by in., indemnifk.«tion set for1h i0 ihis '10.3 is as.serted, eact, ere lrncemnih'i,' <'lgrees to use
b<J,lst efforts ta set,k appropriak appn;;.vals or exemptions lmder appllcable state law t,l provkit: the
indemfl;f!cai~on to the GQC91e Inderrmiif;e{S). Eac;h CIC Indemnitor further agrees ti:cli, to the exten~ It is
r.tntded to assert (;Iaims of immunity under apDiicable federal or state iBW in connection with its l.iSe of UK!
University D\lit81 Copy, s<..:ch cfuirns wiil :)01 tm <-;sserted to vitiate its indemnity obli[4a!ions with regard to
Gl}(}QiC'S l:nbiiitie5 to third parlies arising from such use. The ClC Indemnitor sha!! sdr::Gt CDUrlSe!
reasonably F:ppropl'i<-)\,:) for Stich defense and shal! pay such counsel's fees ane disbuf'sements and a,l
(;0$1$ ~'.nd r-;xpens<.lS iff suit. G{)cgie :nay par<icipate In the def~~nse with counsel c1 its 0wn chok;:e, at its

;."}¥vn cost and expens-f!.
lOA
Hf;'f.1f?U~.:.. Notwithstanding an J1hing to the contrary set fonh in lilis .A:lJree!l'uomL the
indemnsfying panis o()iigations under Secticl'-'S 10.1 and 10.2 shall be Hmited 10 (a} payment byt!1e
indemnifying p<.:rty {'ln~1§!.l1'1i!on .of all damages, juctgmenis,aWartiS, fines, p0!'!aHi<Ols, costs and
expenses (including a(~\1ITleys' iP'f)s anD cost.s of sl...it} finally awarded for such claim, Of (h) ~m()W1t$f;<.lid
in setuement of SliGh claim, provided such amounts ,,'>'ere approved in advance in 'Ni'iUng by the
Indemnitor, whk:.h 3ppmw.ll shall [101 be unreasonably withheld. The fmegoing obligations SrltJll Bxistoniy
if tho pa.ty sel;.kiql !ndGrnnWicatior,: {l} promptly notiffes the indemnitor of such claim, {ii) provIdes (he
lmiernnitQ: with reas<:)11able information, assistance and cooperation in defm,dlng the iawsuit or
pmceerling, at [he lndern,'lito(s expense, and (iii) gives Hle Indemnitor fullcontmf ,:md soie eutt\Grity over
(i'/i) dd<ense ~rnd Somer!)>)nt of such cia;m, The Indemnitee rnay Join In defense with (:Gl.
.lrlsel of its choice
81 its own Gostand dXPflnSf), Th(~ indernnihx shall only reimburse the indemnitee for 0xpBnses incurred
by lhe Im,iwnnit68 'lAth the indemnitor'S prior written approval.

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tN NO [\/ENT '.,ViLL }~NY PARTY OR ITS REGENTS, TRUSTEES, D!RECTOHS, OFFICERS,
EM?LQYEES OF; ,t>,GENTS BE liABLE TO ANY OTHER PARTY NOR TO N\lY THiRD P,1,RTY
CLAIMiNG THROUGH SJCH OTHER PARTY FOR A.NY FORM OF INDIRECT, SPECIAL,
iNClDENT;\L, EXDWLARY, OR CONSEQUENTiAL DAMAGES . INCLUDING LOST REVENUES AND
OF OR iN CONNECTiON '.,",IITH THE. PERFORMANCE OR SUB.JEGT
LOST PROFiTS, ARISING
rvlATTER OF: THIS ,AG;:'~EEMENL

cur

iN NO EVENT SHALL .A,N'y' PARTY'S COMBiNED AGGREGATE UAB!LlTY HEREUNDER f:OR Nf{
CA·USE WHATSOEVER ARISING OUT OF OR IN CONNECTION WiTH THE PEHFORMANCF OR
SU8JECT MMTER. Of THIS ,£IBHEEMENT EXCEED ONE MILLION DOLLARS ($1 ,000,{)00.oO),
THE H)REGOiNG UMIT~.TfQNS OF U/'IBIUTY SHALL APPLY TO THE ~::UU.. EST EXTENT
PERMITTED BY APPLlC.ABLE LAW, WHETHER THE ALl.EGED UAB!UTY 18 BASED ON CONTRACT,
TORT (INCLUDING NEGUGENCE), STRICT UABIUTY OF>~ ANY OTHER BASIS, EVEN IF AN
AUTHORIZED REPF~ESENTMiVE Of A PARTY HAS BEEN ADVISED OF OR SHOULD HAVE
KNOWN OF THE POSSIBIUTY OF SUCH DAMAGES, AND WITHOJT REGARD TO THE SUCCESS
OR EFFECTlVENESS OF OTHER REMEDIES
The P~:rtiBs awee that (:) Uw mulual @greernents made in this Section l·t reflect a reasenat'le $;locab:m
of risk and {ii) that the Parties would not enter into the Agreement without these limitations on liability,
T11eforegoir1g Hmi·la!ions, Ilowever, are not applicable to any damages arising from S o[{"i<lch of SHdion f:;
(Confidentiality), any mOllf::tary obligations arfsing out of the indemnillcaUofl obligations in Section 10.
tndemrdication, in.:Uding, but not limited to. im:!emnificatior for aliegations nf Gop}'right infiinnement, Of to
c:ny (iamag€s related to actions for itljury to or (leatl', of persons,

12,

GENERAL

P}~OV!SIONS

12,1 .tiQ.,qq!i~iflU9.n NotvYjthst8:1(iir'1£l the foregoing, Goog1e shall hBva rIC ob!igation to Digitize
any p,')ri:ion of the / •.vai'.<3ble C(;n~ent nor to use any pOlton of the GO,e;;Jle Digit'"' Copy as p8rl of the
G00910 SeNir.:es. h)'N~Ne;. Google's d0cisier: to cease Digitization activities llnder this 1\9roe0180t si:aJ
not be taken ,ViifHJut pdor consuitatrm with the CIC enabHnlj the CIC UniverSities to mipinlize investments
in staff requireci under this Agreement. Likewise, notwithst.andinn anything in thiS !'"\qreement to the
contrary, no C1GUn;versily Sh"lH be obligated to partidpaie in the Digitization prog~8m descr',bHd in Ulrs
Agmement with resp<:lct to any or all of the Available Content However, a GiC Un've~sily'5 decision no! to
partiCipate on tf),;: Dlg;tzation program shari not be made without prior consultatiof1 vAr; [!'ie CIC, The elc
wii! then inform Goog~e of the decision 01' the CIC University as soon as pOsslGie to 6ni,l)le Goog!e to
minimize [nvf:~st;nents ~n operations i'e''-lulred to perform the Oigitization, FurthernlOfe, notwithstanding
anything in this ;,greernent to trlf: {;ontrary, if Google dei!;lrmines, at its SOle discretion, not to Digltiz,,-,
some W' <iii SGk,,~t;:!c! Content if) connection with one or more specific ProJee.ts, wl,ether' due to cost
issues, consetvf!tlon conCfiiT\S or otherwlse, DooGle shall have no obligHtion te, ttl';' CC or Univt~rsities
wiL", ()spect to digitizing Of" deHverhlD the University Digital Copy \Nitll respect to s~lch Sf)if)cted Content.
12.2

t>ssknmenl. No P2.rty may assign any of lts rights Of delegate any of lis duties under this

f..gmemetlt without thf; prior written consent of the other Parties. which shaH not. unreasonably be
IJViihheld, except th;:,t elther Part)l may assign its rights and delegate lts duties linde, this AgreemenHlpon
\}\irltten notice to the otrH::;r Parties to a division or an aifillate t~lereof (that ,$ riot a competitor of the non ..
assigning Party), pwviCod suetl division or affiliate agrees t.o be bound by a!! of the tenns hereof; Gnd
pn:wided flltil,er llw,% Google 11'!i'ly assign this Agreement without cor.senttc a successof-lil~ihterest in
connection with a rn0fger or the sale of <'II! or substantially' all of its asset$. Any.attempte<.i<:lssigmnent

doioJ;!at:on c·, transfer in derogation hereof shall be nun and void. This ft.greemani shali bB binding upon
the SUC{;OSSOf's and pem:itted zssigns of both pari1es,
12.3
Notices. Unh%$ provided ror to the contrary in this Agreement, any and an notices CH'
other cornmuniC<Jilcms Of deliveries f'irqllired or permitted to be made unduf this fo,groormmt shaH btl si.mt
\a) if to the C!C, to the GtC ,t,,(iministrt'lU'lc Offices at itl8 addmss identitiod alXNO (bj ii' tn a CIG Uni'mrsity
;;,1 ttlC address identified on the signature sheet, and (c) if to Google to such <'Jddress. as provided a1
W?t!:L~Q.2~j~}"gf<.'.llig~:!!2.;X§,'b!ml.:Jn~B,{j,t.\\mi or as othenvise provioed in writing for such notice purposes. /\

second copy of every notice k Gnogie shEil be

se'lt

to the sarno address, {"Attn: Lega!

Dept."

Notico

13

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st';aii be d<eerMd r<eceiv<eci (I) u;)on fBceiptsNhon delivered personally, (ii) upon \Mitton vf;;-ircalion nf
receipt from overnight cOl,r[e;-, (iii) upon verificalion of receipt of registered or certified mail or (iv) upon
verifica1ion of receipt ;,rin faGsimihj, provkit'Jd that such nclica is also sent simllltanecusly via first CklSS
ma\i. Crmtm;( lnbrm;;~lion sl:ail b-e upduted Irl writing ()s necessary to ensure that an Parties have current
klfo;'mation regarrl!ng 8il SlJCl) cantHers.
12,4
!m:l0pend~[lLgf,mtn~cior$, Googf(l, CIC and thr:; CiC Ur\iversities are ~md srlall remain
i:'"ldependent comn3ctn,s, and nOlhinfj l1creio shall be deemed to create an agenc,{, partnership, or joim
vent~lre among them, This Agreernent docs not affect any right that either Party wode flClve hazi, or shaH
have, irdep<:.mded {)f he ,c.,gmament Linder appncahie iaw,
12.5
.tfW;''> Majeure, No Party shaH be liable for failing Dr deisi'ing pe:-forrn2Hl{;0 of its
obligations resulting Jrom any cQndition beyond its reasonable contml, inc:lu0ing oul n{ll iirnitcd te,
governmental aC1ion, sets of terror!sm, earthquakE;. fire, Hood or other acts of God, iatJor o)noitlot'ls,
ptW'Ier falluf'as, and ht6met disturbances.
12,6
Gen~f8I. If any prDvisiry: o"f this }\grecment sh.aU he adjudGed by [my QGwt of cDmpelent
jlirisdict.ior, to be clt;(}iifotceable or invaiid, that provision shaH be limited or eli'f\ht1ted to the minimum
extent necessary so that this Agreement shaH otherwise rern ..in in fvli force and effect anD remain
enforceabie between the parties, Th€ failure of any Party to act in the event of <'1 breach of ,:t1is
Agreemcnt by ar:ot!':l~: shal' net DB deemed a waiver of such breach or (l waiver of futuro brBf:cf)es. No
provision 0'1 this ,i.,Q'·eement is intended to confer any rights, benefits, remedies, obfigations, cr iiahmties
hemunGii):- upon any' person or entity other than the Parties and their mspective successcrs and assigrls,
The seGlbn and parcJgmph he2dings tlsed in tilis Agreement are inserted for convenience o"ly and srmi!
not Bffect the me.aning c): interpretation of tills Agreernent. Tt)iS Agceement sets forth the er:tire
understanding and I:lfJreemel":t between the Pt;rties ard rn,,~y be amended only ;n {l 'N,'(1ng signed by beth
partie". This Agree",ent may be executed in Qne Qr more counterparts, each of whic~; ~hal! be dt,omed
8n t;rlglnal H:nd aE {)f w/"dch, when tnken \DgeU"H:;!', silaH constitute one and the sa.me instrument

'12.7
Gcv0cmil).Q.J&.'L>:" Trlis Agreement shal! he governed by Feder<?-! 1aw witl,c>ut giving efff)ct 10
appiiear)le contne!. of laws provisions, In the event of any dispute or lit1gatkm af1sin~! out 01 or re!H.ting to
lhis Agreament. Parties agr£;e that they sllaH attempt to resoive s"ch dispute in go,)(i 1"lilh. if Buch
dispute cannGt be reSOiVlJd within Hl!rty oays of being raised, the dispute shail be elcvate,j to ti)O highest
fevei at the conlem:Eng Parti€s, If the (Hspute stm cannot be resolved within an additional ltliriy days, the
i3,ggrieved Party,)€" P;;dies may hie f.> lawsuit in the state or federal cou~ts with jurisdiction ttl hear $IJ(;'1
malters, Nolwlthsla!lcing the forego inn, a Party Sh~ia not be precluded fram ,~ppiying 8t any time to a
COlwt of competent iUfSddiOrl for a temporary restraining on:ler', e pmlimin,Jf"y injunction 'Of other equltable
re!ief to pmserve th" status qUI), p,'ev,,,nt the disclosure or infringement of its CDnfldential inforrnatiO!'l or
any oHler ini<"lHectuai prcperty, or prevBnt other irrepar<'Jble harm pendinG the r8soiutior, of the dispute,
?!:9:.:E:<i!~tin£.. Agreements 'fiith Certain JJD.\Y~1'5itiesNQt,.§YR-ors.()08(!
Gong!e tms
12.8
previously m~tem(! 'nto digitiz<'ltiof1 agreements with the University' of Michigi3fl and 11w University of
VVisconSln, OOHl n:<frmbe!'s of tho GtC, The terms and conditions of those agreeinenls "we net sup<~r?;e(iEld
by tl1is. Agw0m{,nL Ra1her, in tlie case of those etC Universities. ihis Agr6(lmeni $pplies only to the
extent necessary t{) a!low iJ1em to pmticipate in the CIC project contemplated herein,

[Rest of page Jeft fntentionallyblank.!

GOOG05000015

A-673
Case 1:05-cv-08136-DC Document 1053-3

B;.< .

Filed 08/03/12 Page 30 of 41

DAVID EUN
Vice President, Content Partnerships

Google, Inc.

2007.06.04 15:46:00 -07'00'

GOOG05000016

A-674
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 31 of 41

~i\~?~'::~~(:~(/ ~:) g.;~::; i~':'yt~.::~n)~~.t~t r~.:·:pn:~(;::~:nts t~~>d ;R):i;'(:,::;r:,~~;,: ~:h:·::£t ~':::.==~ ~):" Rhl:~ hr.·t?'; U'~~~ p:;:~:'i:/~~t ,r:~{}:. ;
.:.::::..;~h::){~~. tD ::·.f.:;:;·~'::;)t t~n.::'j h~:n.-d c.~G :.):~:'·~'''::n~~~y ~!) w;,·:~ t::~riY::.~..

td

~:~'~'!8 }\:'(Jr~~~{r·~f;t;~.

GOOG05000017

A-675
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 32 of 41

;N WiTNESS '.,'iHl-:F',}::OF, CiC university agrees to the lerms of the Agreement attr;ehed rleref<l onct GiC
Utl!Ver6ity's signatory io th1s A::J!£'ement mpr!E;sents fmd warrants that riG t.sr $1'lI.'! has !t~e power and
;"u~i1ority io

acc<lp( u::d bind CiC Univ$(si\y 1{) the terms of tt'lis AgreemenL

GOOG05000018

A-676
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 33 of 41

;:J:~:~:~~f~::-':~~t~i~: ~jqna~~~~y to· th~'~~: :~\~~~t~1~?n~~ytri n:::pt~.::~~~:·its e~'~d ::vH/n~t:'~'5 ;tt~r. !--:.e O( sh?~· h:?:t:; ~t'~e ~)(:\)·;:f.;r t,~n~j
(.:~~.;;:r:-:~·::ri~~-j .~;;~ ~:·:~.x~::~::d. [~/~d i);n(.~ C)/~ :"'1ni:.;~{HV::·~:{ {{~ W:t~: ·~f~{(?".~f:;'· cf ttj~i ,';\JrelN'}'~.;:n~,

.' .. ': ;:.:

'""'.'

~.:

: .• "".J.:.'"

".~

GOOG05000019

A-677
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 34 of 41

IN wrrNESS V,;'HEfiEOF, ere University agre",s to the terms of the Agreemer:! atti::ched hereto and CIC
University's signi1iiory to this Agreement represents and warrants that he Of !;oe h;<.s !h!? ~)Ower Wie
authority b ;:\ccept <lr,d bind CIC U;1!\"ersity to the teriM Df this Agreement.

ctC Unive,sity: ~ )
8y:. __ .... ~ ____._
I
~~:;..--- __
__

PrinJ Nama: /',/fW/ffo/ilC.E
TIU,;;; ?RQV~J5'~

& J)um i7 5

/,.ifH;7Ht..v&-s rG./fJl/

.tlll./I'VE4/,s/·7)/

16

GOOG05000020

A-678
Case 1:05-cv-08136-DC Document 1053-3

f?"~: V\/i;TNE·~';~3 \:·Vj·'~~~·:F:L()F. (:~:(~ Uf;=j~i~~YS~~f' ~:G{'i~~;~=' t~) tt,~=:: t:;;.:::~~'n~~

Filed 08/03/12 Page 35 of 41

{i fhfi' ,~,;V'~i~rtl:f.:n't

th·":,~;~~t.~tS~!y·'~~ S:~~~):jt;):r t1; U~k~ }~grti:;~r:·?::J~lt r::J:pn:'::~B;~n~$ :~~;::~:{ ,:;~~:~n~t;t$ ~:n~:!t
u:Jjj~(~rh} ~;::~ ~~<:t~::.:Vl: :i~:'-1d b;n:{f (~~C Ut:~·i~'tf:.}t~: ~t'; i.:-:~· t~m::::"

h·:;: :}r

i:U!~~~'J~:-:~d' (~~:;~'..:;~~~ ~,nj G~C
~:,~~.;~~ ~iim;. t;~':~~ ~~~/~?;:·:~:r ;f:{:():

cf t~"'{·::~: ~';;;',gr~-e;:'1ent.

c·~c· Unh~;,;:H~l:
:·~~~: ..,...;..•~;~:;-:.~~~::~·:::.:}.... 3:,f.::-:::~~::~, . ~:·:-::_,,~:~~.'~~:"_N""'_-'-'_-:". ;~_',_,~..;:~:_cc."_''"
'

,

,,';:

~.\,,' ::~'.,.:: ~

......:"

GOOG05000021

A-679
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 36 of 41

g...j: V\;TrNE~?:S \,"~/hE~:::EC~F, Cy) ~.k~~:~},~t$·:ty ~£u';:.)m~~: t~J ;h~~~ f;e~~r{:;;;: o·f the .l~9r.~;-~.;~·t:."~Htt. ~~!t.::;::;:b~~{j: h~~NJi<} -;J~~d (:·iC,
to th!$ Agt';:':'~:;r:n':f:n~ r~lp:e~~nts a~:d \-""'.:::gf::::)nts~ ti":·Ht h~: ct S~':~~ ~}r:~~-; U'~:5' p0:?-:;-:~;t w·v.~:

U;:~-:i?~::i:Jv'~':; ~}~;rne.-t·:~::-y
~~~,~{t:~{:~ri~y

t<:

:~~::;%::pt

aHd bind

C~C th1;·;f*.h.. t~ity ~~~: th~;? ~.~;"':ros .~'.1"f th~~:; .A-gni.:';;";·;n:ont.

GOOG05000022

A-680
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 37 of 41

etc University agmes to ihe terms of the Agreement aMc:<~~6 her!t:io and Ole
Ur:ivemity's slgnabiY to this Agreemeflt represents and warrants triat he or SflB r;3s the power $oti

IN WlTN'E.SS \i\iHEPEOF,

"'tlthotlty to tlClce,:'lt and bind CIG Universay to the terms of this Agreement.

Oat£;: April i?, 20l)7

GOOG05000023

A-681
Case 1:05-cv-08136-DC Document 1053-3

~N \:Vrrf·.g:.·~;~~:~ :~:·:/H·EJ~E(:·f.

C}C

~)f·;~-~. hl~·;··~~t:/ ~:~:~1H~';~S ~';:> !.h::.~: i=r~:?:'-;:m (:f ~ht.~ ~\{;;'~~:f(;~:~;:~t ~t~a;::n:;):d :h:~{~~!tt:

{)::::~. .~::::~J1y\~ ~~~~~n.:xk~·:y ~:} Fl:~.:~~ /;.·:;;-r.:~;:~(r:.::~n::. :\~):'{~:~-~~~{~f:::~ nl~d
a(.~1h:x~:~:{ t{~ ::~'~:~"A~:<~t ::~t:d ~);r:·.j

Filed 08/03/12 Page 38 of 41

. . ~:-:1:ir::ifr::~1

:::r:-:d

C:·g:~~

~~':~:d h~::' (~{ :~:hu h~·).:~ U~,~~ ::)::.W~::::N-' ~~~~<~

C}C t}':'-:h;:'~;f$;~y ~:O tMf: h~:~r;::::~~ ~~:! ~h~·:t fo.~r~;~:~~·t:::~L

:

........................

:;

..... : ..

.)

GOOG05000024

A-682
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 39 of 41

iN W1TNESSv'-/Hf.i?,E{)r:, ere Universlty agrees to the terms of the ,~gr{!emeflt attached r.emta and CjC
IJnive:s1ty's signalory to this Agreement represents and warrants that he or she he.s the powe aM
authority to aCGepr a"d binc (;;C Uni\lmsil~' to ihe terms of thi:3 ,t.,gre€ment

etc liniv€rs!t'/: Unlversl[y of minors at Urbana-Champaign

Ti:.ie PWVtls! "nd Vice Cbancellor for Academtc Affairs

16

GOOG05000025

A-683
Case 1:05-cv-08136-DC Document 1053-3

Filed 08/03/12 Page 40 of 41

IN WITNESS WH2REOf, CIC lJni\<'ers~ly agrees t() the terms of ttl!£' Agreement a,\ach~d here!o and C!C
Urivel'sity's slgn<:ltory to tills Agreement represents ano warrants that tie or she has trle ~ower and
authoriti k 8ccept a,~d bind ClC Unlvs,siiy to ina t.erms of this Agreement.

elC Unilfarsity: Board of Trustees of the
Un~vsrslty of W!l'lJ}ls on berm if or the
University nf Wlnols at Chicago
By:

iii<Jj(M/;,.

i(

/(p,-<,...rvL,.._ _ n.n_.............

16

GOOG05D00026

A-684
Case 1:05-cv-08136-DC Document 1053-3

j:~~~ \;\~~TNf.:SS Jy~~q··~.r?F:{·:·:()F-·",

GJ.C

U.rd\':::;:;:t~~iy ·a@n~;'Js .~{) tr:i~ t:(~·~::n$

Filed 08/03/12 Page 41 of 41

or U":e /:S~:~{;::::.:l~:::t

to: ~hb, ,:\g:z;:q;-;'Y:f:rlt rf.f;r0'G~;~fYt~ .3·n;j Vfa=ra.nts t1\:l~ ~:f~ (:r
<.;~~th~~)t{~y ·h:.< ,;~CCB~:':t. lit=G: bInd C{C· U·;1j:{,1}(.$~ty '~D {h:t~. ~~frB~· ~:~~:: 1h~~ Agrw~rnti,:nt.
.
§.Y;~':.'e,.'·':;:.;t:(:~ zl.~"fH::k::rJ

~r::~~?chH(j ~~!~3n~t) .:::n~
~~h;~: t::~1"S:: rh'~

p::;::. . . .{~3:r

GOOG05000027

A-685
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 1 of 37

EXHIBIT 24
FILED UNDER SEAL

A-686
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 2 of 37

EXHIBIT 25
FILED UNDER SEAL

A-687
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 3 of 37

EXHIBIT 26
FILED UNDER SEAL

A-688
Case 1:05-cv-08136-DC Document 1053-4

EXHIBIT 27

Filed 08/03/12 Page 4 of 37

A-689
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 5 of 37

DURIE TANGRI LLP
DARALYN J. DURIE (Pro Hac Vice)
[e-mail]
JOSEPH C. GRATZ (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.,
Plaintiffs,

Civil Action No. 05 CV 8136 (DC)

v.
Google Inc.,
Defendant.
DEFENDANT GOOGLE INC.’S RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ FIRST SET OF REQUESTS FOR ADMISSION

A-690
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 6 of 37

Pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure, Defendant Google
Inc. (“Google”) hereby responds to Plaintiffs’ First Set of Requests for Admission (Nos. 1-34)
with the following objections and responses.
GENERAL OBJECTIONS
1.

Google objects to the preface, instructions, and definitions to the Requests to the

extent that they purport to impose obligations that exceed those imposed by the Federal Rules of
Civil Procedure, relevant local rules, and applicable case law. In responding to these requests,
Google has followed the applicable law and has ignored the improper preface, instructions, and
definitions.
2.

Google objects to the Requests in their entirety and to each request to the extent

that the documents and information sought are protected from discovery by the attorney-client
privilege, the work-product doctrine, or any other applicable privilege.
3.

Google objects to each and every request to the extent that it seeks information

that is confidential and/or proprietary information. To the extent not otherwise subject to
objection, Google will produce such confidential documents in accordance with the terms of the
protective order entered in this case.
4.

Google objects to the Requests in their entirety and to each discovery request as

unduly burdensome to the extent they seek information or documents already known to
Plaintiffs, or which are equally available to Plaintiffs.
5.

Google objects to the Requests in their entirety and to each discovery request to

the extent they seek documents not relevant to any claim or defense in this action or reasonably
calculated to lead to the discovery of admissible evidence.

1

A-691
Case 1:05-cv-08136-DC Document 1053-4

6.

Filed 08/03/12 Page 7 of 37

Google objects to The Authors Guild’s definition of “Google” as vague,

ambiguous, unintelligible, and overly-broad. For purposes of responding to these discovery
requests, Google will interpret “Google” to mean Google Inc. and/or its agents.
7.

Google objects to the time period of these requests as overly broad and unduly

burdensome.
8.

Google objects to the Requests to the extent they request information pertaining to

persons or activities outside the United States.
9.

Google objects to the Requests to the extent they request information pertaining to

Google products other than Google Books, and Google’s responses are limited to Google Books.
10.

Google objects to each and every discovery request to the extent that it purports to

impose a burden of providing information not in Google’s possession, custody, or control or
which cannot be found in the course of a reasonable search. Google has undertaken a reasonable
and good-faith effort to locate all relevant, non-privileged documents known to it at this time that
are responsive to these requests, but they reserve the right to conduct further investigation and
discovery as to any issue raised or suggested by any discovery request and to rely on any
subsequently discovered information or documents at trial or any other proceeding.
11.

Google has not yet completed its investigation of the facts relating to this case.

Any and all responses to the following discovery requests are therefore based solely on
information presently known to Google, and Google reserves its right to conduct further
discovery and investigation and to use at trial or any other proceeding evidence of any
subsequently discovered facts, documents, or information.
12.

In responding to these discovery requests, Google does not concede the relevancy

or materiality of any request or of the subject to which any request refers. Google’s responses to

2

A-692
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 8 of 37

these discovery requests are made expressly subject to and without waiving any objections in any
proceeding, including trial of this action, as to competency, relevancy, materiality, or privilege of
any of the documents referred to or the responses given.
RESPONSES AND OBJECTIONS TO REQUESTS FOR ADMISSION
REQUEST FOR ADMISSION NO. 1:
As part of its Library Project, Google began in 2004 to digitally copy printed in-copyright
works in their entirety, without permission from the copyright owners of such works.
RESPONSE TO REQUEST FOR ADMISSION NO. 1:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
the term “copy” as vague and ambiguous, and construes that term to mean “to create one or more
copies, as that term is defined in 17 U.S.C. § 101.” Google objects to the definition of “Library
Project” as vague and ambiguous.
Subject to and without waiving its objections, Google responds as follows: Google
admits that it began in 2004 to scan, among other works, printed in-copyright and out-ofcopyright works from libraries in their entirety, and that Google scans some works without the
permission of the copyright owners in those works, as Google’s acts with respect to those works
constitute fair use. Except as specifically admitted, Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 2:
One of Google’s goals in its Library Project has been to digitally copy all of the printed
books in the United States, including in-copyright books, regardless of their content.
RESPONSE TO REQUEST FOR ADMISSION NO. 2:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
3

A-693
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 9 of 37

the term “copy” as vague and ambiguous, and construes that term to mean “to create one or more
copies, as that term is defined in 17 U.S.C. § 101.” Google objects to the definition of “Library
Project” as vague and ambiguous.
Subject to and without waiving its objections, Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 3:
Google undertook the Library Project for commercial reasons.
RESPONSE TO REQUEST FOR ADMISSION NO. 3:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to the definition of
“Library Project” as vague and ambiguous.
Subject to and without waiving its objections, Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 4:
Google undertook the Library Project to gain a competitive advantage over other
participants in the search engine market.
RESPONSE TO REQUEST FOR ADMISSION NO. 4:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to the definition of
“Library Project” as vague and ambiguous.
Subject to and without waiving its objections, Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 5:
Google has entered into agreements with libraries, including the University of Michigan,
Stanford University, and the University of California, to obtain access to works for the purpose
of digitally copying such works, including in-copyright works.

4

A-694
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 10 of 37

RESPONSE TO REQUEST FOR ADMISSION NO. 5:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
the term “copy” as vague and ambiguous, and construes that term to mean “to create one or more
copies, as that term is defined in 17 U.S.C. § 101.” Google objects to the definition of “Library
Project” as vague and ambiguous.
Subject to and without waiving its objections, Google responds as follows: Google
admits that it has entered into agreements with certain libraries, including the University of
Michigan, Stanford University, and the University of California, pursuant to which those
libraries request that Google scan books, including in-copyright works, provided to Google by
the library. Except as specifically admitted, Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 6:
In order to gain access to printed works for the purpose of digitally copying them, Google
agreed to provide libraries with digital copies of works copied from the libraries’ collections.
RESPONSE TO REQUEST FOR ADMISSION NO. 6:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
the term “copy” as vague and ambiguous, and construes that term to mean “to create one or more
copies, as that term is defined in 17 U.S.C. § 101.” Google objects to the definition of “Library
Project” as vague and ambiguous.
Subject to and without waiving its objections, Google responds as follows: Google
admits that it has entered into agreements with certain libraries, including the University of
Michigan, Stanford University, and the University of California, pursuant to which those
libraries request that Google scan books, including in-copyright works, provided to Google by
5

A-695
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 11 of 37

the library, and Google provides digital copies of those books to the libraries which, pursuant to
the contracts, may be used only in ways which do not violate copyright law. Except as
specifically admitted, Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 7:
To date, as part of its Library Project, Google has copied millions of in-copyright works,
without permission from the copyright owners of such works.
RESPONSE TO REQUEST FOR ADMISSION NO. 7:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
the term “copy” as vague and ambiguous, and construes that term to mean “to create one or more
copies, as that term is defined in 17 U.S.C. § 101.” Google objects to the definition of “Library
Project” as vague and ambiguous.
Subject to and without waiving its objections, Google responds as follows: Google
admits that it has scanned millions of in-copyright works from library collections and that,
because Google’s acts constituted fair use, permission was generally not sought or granted with
respect to some of those works. Except as specifically admitted, Google responds as follows:
Denied.
REQUEST FOR ADMISSION NO. 8:
To date, as part of its Library Project, Google has provided to libraries digital copies of
millions of in-copyright works, without permission from the copyright owners of such works.
RESPONSE TO REQUEST FOR ADMISSION NO. 8:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of

6

A-696
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 12 of 37

the term “copy” as vague and ambiguous, and construes that term as that term is defined in 17
U.S.C. § 101. Google objects to the definition of “Library Project” as vague and ambiguous.
Subject to and without waiving its objections, Google responds as follows: Google
admits that it has entered into agreements with certain libraries, pursuant to which those libraries
have requested that Google scan books, including in-copyright works, provided to Google by the
library, and Google has provided digital copies of millions of those books to the libraries which,
pursuant to the contracts, may be used only in ways which do not violate copyright law. Except
as specifically admitted, Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 9:
To date, as part of its Library Project, Google has copied in their entirety millions of incopyright works, including in-print and out-of-print works, fiction and non-fiction works,
reference works, anthologies, educational works, textbooks, dissertations, monographs, journals,
government publications and other type of works.
RESPONSE TO REQUEST FOR ADMISSION NO. 9:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
the term “copy” as vague and ambiguous, and construes that term to mean “to create one or more
copies, as that term is defined in 17 U.S.C. § 101.” Google objects to the definition of “Library
Project” as vague and ambiguous.
Subject to and without waiving its objections, Google responds as follows: Google
admits that it has scanned in their entirety millions of books from libraries, including in-print and
out-of-print works, fiction and non-fiction works, reference works, anthologies, educational
works, textbooks, dissertations, monographs, journals, government publications and other types
of works. Except as specifically admitted, Google responds as follows: Denied.
7

A-697
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 13 of 37

REQUEST FOR ADMISSION NO. 10:
Each in-copyright work copied by Google as part of its Library Project was copied by
Google in its entirety at least twice, without permission from the copyright owners of such
works.
RESPONSE TO REQUEST FOR ADMISSION NO. 10:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
the term “copy” as vague and ambiguous, and construes that term to mean “to create one or more
copies, as that term is defined in 17 U.S.C. § 101.” Google objects to the definition of “Library
Project” as vague and ambiguous.
Subject to and without waiving its objections, Google responds as follows: Google
admits that it creates and maintains, as necessary for its fair uses, more than one copy of the
books it scans from library collections. Except as specifically admitted, Google responds as
follows: Denied.
REQUEST FOR ADMISSION NO. 11:
Google maintains on its servers digital copies of millions of in-copyright works, without
permission from the copyright owners of such works.
RESPONSE TO REQUEST FOR ADMISSION NO. 11:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
the term “copy” as vague and ambiguous, and construes that term as that term is defined in 17
U.S.C. § 101. Google objects to the definition of “Library Project” as vague and ambiguous.
Google objects to the term “works” as vague and ambiguous. Google objects to this Request to

8

A-698
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 14 of 37

the extent it requests information pertaining to Google products other than Google Books, and
Google’s response is limited to Google Books.
Subject to and without waiving its objections, Google responds as follows: Google
admits that it creates and maintains, as necessary for its fair uses, more than one copy of the
books it scans from library collections, and that it has scanned millions of books from library
collections. Except as specifically admitted, Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 12:
Google uses the works copied in its Library Project to display search results to users of its
search engine.
RESPONSE TO REQUEST FOR ADMISSION NO. 12:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
the term “copy” as vague and ambiguous, and construes that term to mean “to create one or more
copies, as that term is defined in 17 U.S.C. § 101.” Google objects to the definition of “Library
Project” as vague and ambiguous. Google objects to this Request to the extent it requests
information pertaining to Google products other than Google Books, and Google’s response is
limited to Google Books.
Subject to and without waiving its objections, Google responds as follows: Google
admits that one of the fair uses to which it puts books is rendering them searchable using the
Google Books website. Except as specifically admitted, Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 13:
In response to search queries by users of its search engine, Google has displayed content
on the Internet from millions of in-copyright works, without permission from the copyright
owner of such works.
9

A-699
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 15 of 37

RESPONSE TO REQUEST FOR ADMISSION NO. 13:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
the term “copy” as vague and ambiguous, and construes that term to mean “to create one or more
copies, as that term is defined in 17 U.S.C. § 101.” Google objects to the definition of “Library
Project” as vague and ambiguous. Google objects to this Request to the extent it requests
information pertaining to Google products other than Google Books, and Google’s response is
limited to Google Books.
Subject to and without waiving its objections, Google responds as follows: Google
admits in response to search queries by users of Google Books, in order to help users find the
book they’re looking for, Google has displayed short “snippets” of text from millions of books to
those users, though it only displays a maximum of three “snippets” in response to a search query.
Except as specifically admitted, Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 14:
In response to search inquiries by users of its search engine, Google searches the
complete text of works copied in its Library Project.
RESPONSE TO REQUEST FOR ADMISSION NO. 14:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
the term “copy” as vague and ambiguous, and construes that term to mean “to create one or more
copies, as that term is defined in 17 U.S.C. § 101.” Google objects to the definition of “Library
Project” as vague and ambiguous. Google objects to this Request to the extent it requests
information pertaining to Google products other than Google Books, and Google’s response is
limited to Google Books.
10

A-700
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 16 of 37

Subject to and without waiving its objections, Google responds as follows: Google
admits in response to search queries by users of its Google Books website, in order to help users
find the book they’re looking for, Google searches the complete text of at least some of the
works scanned from library collections. Except as specifically admitted, Google responds as
follows: Denied.
REQUEST FOR ADMISSION NO. 15:
None of the representative plaintiffs gave permission to Google to copy, distribute or
display any of their works.
RESPONSE TO REQUEST FOR ADMISSION NO. 15:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
the term “copy” as vague and ambiguous, and construes that term to mean “to create one or more
copies, as that term is defined in 17 U.S.C. § 101.” Google objects to this Request to the extent
it requests information pertaining to Google products other than Google Books, and Google’s
response is limited to Google Books.
Subject to and without waiving its objections, Google responds as follows: Google
admits that the representative plaintiffs themselves did not give Google any permissions with
respect to any of their books, as Google’s acts constituted fair use, although their publishers gave
Google certain permissions with respect to some of their works. Except as specifically admitted,
Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 16:
Google did not seek permission from any of the representative plaintiffs to copy,
distribute or display any of their works.

11

A-701
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 17 of 37

RESPONSE TO REQUEST FOR ADMISSION NO. 16:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
the term “copy” as vague and ambiguous, and construes that term to mean “to create one or more
copies, as that term is defined in 17 U.S.C. § 101.” Google objects to this Request to the extent
it requests information pertaining to Google products other than Google Books, and Google’s
response is limited to Google Books.
Subject to and without waiving its objections, Google responds as follows: Google
admits that, because its acts constituted fair use, Google did not seek any permission from the
representative plaintiffs themselves, although their publishers gave Google certain permissions
with respect to some of their works. Except as specifically admitted, Google responds as
follows: Denied.
REQUEST FOR ADMISSION NO. 17:
Google did not seek permission from copyright owners before copying in-copyright
works in its Library Project.
RESPONSE TO REQUEST FOR ADMISSION NO. 17:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
the term “copy” as vague and ambiguous, and construes that term to mean “to create one or more
copies, as that term is defined in 17 U.S.C. § 101.” Google objects to the definition of “Library
Project” as vague and ambiguous.
Subject to and without waiving its objections, Google responds as follows: Google
admits that before beginning to scan works from libraries, because its acts constituted fair use, it
generally did not seek or receive permissions from copyright holders with respect to its project of
12

A-702
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 18 of 37

scanning books from libraries. Except as specifically admitted, Google responds as follows:
Denied.
REQUEST FOR ADMISSION NO. 18:
Google has not compensated copyright owners for its copying in its Library Project of incopyright works.
RESPONSE TO REQUEST FOR ADMISSION NO. 18:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
the term “copy” as vague and ambiguous, and construes that term to mean “to create one or more
copies, as that term is defined in 17 U.S.C. § 101.” Google objects to the definition of “Library
Project” as vague and ambiguous.
Subject to and without waiving its objections, Google responds as follows: Google
admits that it has not provided direct monetary compensation to copyright holders with respect to
its scanning of books from libraries and the display of short “snippets” of text in response to
search queries. Except as specifically admitted, Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 19:
Google has not compensated copyright owners for its display on the Internet of content
from in-copyright works copied in its Library Project.
RESPONSE TO REQUEST FOR ADMISSION NO. 19:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request’s use of
the term “copy” as vague and ambiguous, and construes that term to mean “to create one or more
copies, as that term is defined in 17 U.S.C. § 101.” Google objects to the definition of “Library
Project” as vague and ambiguous.
13

A-703
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 19 of 37

Subject to and without waiving its objections, Google responds as follows: Google
admits that it has not provided direct monetary compensation to copyright holders with respect to
its scanning of books from libraries and the display of short “snippets” of text in response to
search queries. Except as specifically admitted, Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 20:
Google’s security measures may be breached due to the actions of outside parties,
employee error, malfeasance, or otherwise, and, as a result, an unauthorized party may obtain
access to data held by Google, including works copied in its Library Project.
RESPONSE TO REQUEST FOR ADMISSION NO. 20:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request on the
ground that it presents a hypothetical question. Google objects to this Request on the ground that
it is vague and ambiguous, including without limitation in its use of the term “security.”
Google objects to this Request to the extent it requests information pertaining to Google products
other than Google Books, and Google’s response is limited to Google Books.
Subject to and without waiving its objections, Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 21:
Outside parties may attempt to fraudulently induce Google employees, users, or
customers to disclose sensitive information in order to gain access to data held by Google.
RESPONSE TO REQUEST FOR ADMISSION NO. 21:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request on the
ground that it presents a hypothetical question. Google objects to this Request on the ground that
it is vague and ambiguous. Google objects to this Request on the ground that it seeks
14

A-704
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 20 of 37

information pertaining to the state of mind of third parties, of which Google has no direct
knowledge. Google objects to this Request to the extent it requests information pertaining to
Google products other than Google Books, and Google’s response is limited to Google Books.
Subject to and without waiving its objections, Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 22:
Because the techniques used by outside parties to obtain unauthorized access to data
change frequently and often are not recognized until launched against a target, Google may be
unable to anticipate these techniques or to implement adequate preventative measures.
RESPONSE TO REQUEST FOR ADMISSION NO. 22:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request on the
ground that it presents a hypothetical question. Google objects to this Request on the ground that
it is vague and ambiguous. Google objects to this Request to the extent it requests information
pertaining to Google products other than Google Books, and Google’s response is limited to
Google Books.
Subject to and without waiving its objections, Google responds as follows: Denied.
REQUEST FOR ADMISSION NO. 23:
Google does not consider itself responsible for the security of the digital copies of works
provided by it to libraries in its Library Project.
RESPONSE TO REQUEST FOR ADMISSION NO. 23:
Google objects to this request to the extent it calls for the disclosure of material protected
by the attorney-client privilege or any other privilege. Google objects to this Request on the
ground that it is vague and ambiguous, including without limitation in its use of the term
“security.”
15

A-705
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 29 of 37

EXHIBIT 28

A-706
Case 1:05-cv-08136-DC Document 991-1 Filed 12/12/11 Page 32 of 110
1053-4 Filed 08/03/12 Page 30 of 37
Page 1 of1

Google Books Library Project

Google books
About Google
Books

Google Books Library Project - An enhanced card catalog of the
world's books
We're working with several major libraries to include their collections in Google Books and,like a
card catalog, show users information about the book, and in many cases, a few snippets - a few
sentences to displaY the search term in context.

Partn~r Program
• For Publishers &
Authors
• Join Now
• Partner Help

Library PmjBCI:
• Overview

What does a Google Books Library Project book look like?
When you CliCk on a search result for a booK from the Ubrary Project, yotJll see basic bibliograpl1ic
inlonnalion about the book, and in many cases, a few snippets - a few sentences showing your
search term in context. If the booK is oul of copyright, you'll be able to view and download the enlire
book_ In all cases, you'll see links directing you to online bookstores where you can buy the booK
and libraries where you can borrow it.

~

Perspectives

• \NIlet's the Issue?
• Facts & Ficlion
• Legal Analysis

.. --

Full View
'-----.

---"\,':'

No Preview Available

Snippet View

, .:.
I
--~-.

.-

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--

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Add Book Searcll to
your site

11-'--'-:-4' .~­

.

• 1" _
'," ,-I ~.---

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I
!
,

.,

View Ihe enlire book

View b... 5ic information aboutlhe book

To see close~ups of these pages and to learn more about Google Books features, view our
Screenshots.

What's the goal of this project?
The Library Project's aim is simple: maKe it easier for people to find relevant books - specifically,
bOOkS IheywOLJldn't nnd any olherway such as those that are oul of print- while carefully
respecting alihors' and publishers' copyrights. Our ullimate goal is to work with publishers and
libraries to create a comprehensive, searchable, virtual card catalog of all booKs in all languages that
helps users discover new books and publishers discover new readers.
~2011

Google ~ Home ~ About Gongle ~ Privacy Policy

http://www.google.comlgoogle booksflibrat}' _
html

1218/2011

A-707
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 31 of 37

EXHIBIT 29
FILED UNDER SEAL

A-708
Case 1:05-cv-08136-DC Document 1053-4

Filed 08/03/12 Page 32 of 37

EXHIBIT 30

1980
1995
1982
1979
1982
1963
1959
1991
1979
1987
1969
1973
1961
1991
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American Institute Suggested improvementsUOM,2010Ͳ11Ͳ15
American Institute Audits of employee beneUOM,2010Ͳ11Ͳ15
Krystyna Dyrek
Reactivity of solids
Financial AccountinAn analysis of issues rela UOM,2010Ͳ11Ͳ15
Krystyna Dyrek
Reactivity of solids
Richard H. Rush
The techniques of becomUOM,2010Ͳ11Ͳ15
William Paxton BoyProductive business writ UOM,2010Ͳ11Ͳ15
Richard B. McKenzi Airline deregulation and UOM,2010Ͳ11Ͳ15
Robert W. Mandell Financing the capital req UOM,2010Ͳ11Ͳ15
John James Pipoly A systematic revision of the genus Cybianthus, su
Arthur Andersen & Accounting and reportingUOM,2010Ͳ11Ͳ15
United States. DepaCensus of Population
UOM,2010Ͳ11Ͳ15
Frank Walter Paish Business finance
UOM,2010Ͳ11Ͳ15
Theresa Brothers Corporate ethics
UOM,2010Ͳ11Ͳ15
Michael H. Markel Make your point
UOM,2010Ͳ11Ͳ15
Edwin M. RobinsonBusiness organization an UOM,2010Ͳ11Ͳ15
Joseph W. CotchettThe ethics gap
UOM,2010Ͳ11Ͳ15
Max Bell
Everyday Mathematics
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Nihon Konin Kaikei Corporate disclosure in J UOM,2010Ͳ11Ͳ15
Doris B. McLaughlinThe impact of labor unio UOM,2010Ͳ11Ͳ15
National Industrial Construction and buildin UOM,2010Ͳ11Ͳ15
George Teele StufflThe traffic dictionary
UOM,2010Ͳ11Ͳ15
John C. Burton
Corporate financial reporUOM,2010Ͳ11Ͳ15
Irving Kellogg
Fraud, window dressing, UOM,2010Ͳ11Ͳ21
Judith A. Sromovsk Solutions manual to accoUOM,2010Ͳ11Ͳ15
Charles Oliver Well A primer on budgeting UOM,2010Ͳ11Ͳ15
Lydia Strong
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William Rupert Bas Accounting as an aid to bUOM,2010Ͳ11Ͳ15
Morton B. SolomonKMG Main Hurdman guidUOM,2010Ͳ11Ͳ15
Australian Academ Knowing ourselves and o UOM,2010Ͳ11Ͳ15
John Gordon Dakin Retail credit manual
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John E. Clow
Economics in the businesUOM,2010Ͳ11Ͳ15
United States. Bure1967 Census of Manufac UOM,2010Ͳ11Ͳ15

A-709

Case 1:05-cv-08136-DC Document 1053-4
Filed 08/03/12 Page 33 of 37

1982
1969
1993
1983
1988
1940
1934
1981
1984
1975
1978
1996
1971
2001
1969
1971
1957
1991
1991
2006
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1952
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1991
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Gardner Lindzey The Handbook of Social PUOM,2010Ͳ11Ͳ15
Stephen J. Garone Building a highͲperforma UOM,2010Ͳ11Ͳ15
Enzo R. Grilli
The Outlook for primary UOM,2010Ͳ11Ͳ15
Andersen ConsultinThe Changing role of the UOM,2010Ͳ11Ͳ15
H. S. Oakley
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Wayne Mackenzie Financial organization an UOM,2010Ͳ11Ͳ15
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Thomas C. SchellingChoice and consequence UOM,2010Ͳ11Ͳ15
Eunice C. Coleman Supervisors
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Grant W. Newton Periodic reporting for int UOM,2010Ͳ11Ͳ15
John Borton
An account of coordinati UOM,2010Ͳ11Ͳ15
Robert E. Seiler
Accounting principles forUOM,2010Ͳ11Ͳ15
Mary Bolté
A guide for using Curious George and other Curio
Keith Davis
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Robert A. Dickmann
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American Accounti Accounting and reportingUOM,2010Ͳ11Ͳ15
Jay K. Hackett
Science in Your World: Teacher resource masters
Jean Jamieson
The aminal by Lorna Balian
Susan Geye
Edward Bloor
Paul Danos
Intermediate accounting UOM,2010Ͳ11Ͳ15
Cornell University. The impact of budgets onUOM,2010Ͳ11Ͳ15
Patrick J. Davey
Financial manuals
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Michael R. Cohen Discover Science: Science process skills book
Robert D. Helsby The Evolving process
UOM,2010Ͳ11Ͳ15
Dwight R. Ladd
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S. C. Saksena
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Larry E. Kuhlken Expanding professional s UOM,2010Ͳ11Ͳ15
Foundation for Res Predicting managerial su UOM,2010Ͳ11Ͳ15
Elizabeth Cohn
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Foresman and ComDiscover science
Maurice Moonitz The entity theory of consUOM,2010Ͳ11Ͳ15
Jeanette Reuter The Kent Infant Development (KID) Scale
Gail L. Ensher
Syracuse Scales of Infant Development (SSID)

A-710

Case 1:05-cv-08136-DC Document 1053-4
Filed 08/03/12 Page 34 of 37

1981
1976
1975
1989
1993
1973
1952
1996
2000
1993
1963
1992
1980
1941
1987
1961
1983
1979
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FILED UNDER SEAL

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Page 1
1

UNITED STATES DISTRICT COURT

2

SOUTHERN DISTRICT OF NEW YORK

3

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THE AUTHORS GUILD, et al. ,
Plaintiffs,

5
6
7

Master File No.
05 CV 8136-DC

-vs-

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

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25

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Filed 08/03/12 Page 3 of 36

Page 2

I
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APPEARANCES:

MICHAEL 1. BONI, ESQ.
Boni & Zack, LLC
15 St. Asaphs Road
Bala Cynwyd, Pennsylvania 19004
[phone]
[e-mail]
Appearing on behalf of Plaintiffs, via
10
Speakerphone.
11
12 DARALYN J. DURIE, ESQ.
13 Durie Tangri
14 217 LeidesdorffStreet
15 San Francisco, California 94111
16 [phone]
17 [e-mail]
18
Appearing on behalf of Defendant Google.
19
20
21
22 (Appearances continued on Page 3.)
23
24
25

Page 4

1 APPEARANCES: (Continued)
2
3 ALSO PRESENT:
4
Steve Alfonsi, Videographer
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APPEARANCES: (Continued)

INDEX TO EXAMINATIONS
2

JOSEPH PETERSEN, ESQ. and
ALLISON SCOTT ROACH, ESQ.
Kilpatrick Townsend & Stockton, LLP
The Grace Building
1114 Avenue of the Americas
New York, New York, 10036-7703
[phone]
[e-mail]
[e-mail]
Appearing on behalf of the University of
Michigan and the Deponent.

3 WITNESS
PAGE
4 PAUL N. COURANT, Ph.D.
5
6 EXAMINATION BY MR. BONI
7 EXAMINATION BY MS. DURIE
8 REEXAMINATION BY MR. BONI
9
10

7

92
116

11

12
13

INDEX TO EXHIBITS

14

JACK BERNARD, ESQ.
Associate General Counsel
The University of Michigan
Office of the Vice President and General Counsel
5010 Fleming Administration Building
503 Thompson Street
Ann Arbor, Michigan 48109
[phone]
[e-mail]
Appearing on behalf of the University of
Michigan.

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EXHIBIT

PAGE

EXHIBIT 1
Complaint

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EXHIBIT2
Answer and Defenses

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EXHIBIT 3
Cooperative Agreement

101

25

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Page 6

Page 8

1 Ann Arbor, Michigan

1

2 Monday, April 23, 2012

2 pursuant to a subpoena that Plaintiffs in the Google
3 matter served on the University of Michigan?

3 About 1:51 p.m.
4
DEPOSITION EXHIBITS 1 AND 2
5
(Identified in Index to Exhibits)
6
7

Q.

Dr. Courant, you understand that you're here

4
A. I'm actually here because my attorney tells
5 me to be here, but that sounds plausible.
6
MR. PETERSEN: And as to--

WERE MARKED BY THE REPORTER
FOR IDENTIFICATION

7 Joe Petersen speaking, Mike,just I'll add as well the

8
THE VIDEOGRAPHER: On the record.
9 This is the videotaped deposition of Paul Courant being
10 taken in Ann Arbor, Michigan. Today is April 23rd,
11 2012. The time is 1:51 p.m.
12
Will the attorneys please introduce
13 themselves and the court reporter please swear in the
14 witness.
I S M S . DURIE: This is Daralyn Durie
16 representing Google.
17
MR. PETERSEN: This is Joe Petersen
18 representing the University of Michigan and the
19 witness, Dr. Paul Courant.
20
MR. BONI: And this is Michael Boni
21 representing the Plaintiffs in the matter Authors Guild

8 subpoena was in fact to the University of Michigan.
9
MR. BONI: Right, that's what I said
lOin the question, yeah.
11 BY MR. BONI:
12
Q. And you are here, Dr. Courant, representing
13 the University of Michigan as a result of that
14 subpoena?
IS
A. That's correct.
16
Q. Okay. Dr. Courant, what are your -- what
17 are your duties at the University of Michigan?
18
A. I'm a professor of economics and a professor
19 of public policy and a professor of information, and in
20 those contexts I teach, advise dissertations, go to
21 department meetings, engage in the life of the faculty,

22 et al v. Google.

22 and I'm also Dean of Libraries and the university

23
PAUL N. COURANT, Ph.D.,
24 having first been duly sworn, was examined and
25 testified on his oath as follows:

23 librarian, and in that context I am responsible for the
24 activities of the largest library or set oflibraries
25 on campus.
Page 7

1 EXAMINATION BY MR. BONI:
2
Q. Good afternoon, Doctor. Is it okay to refer
3 to you-4
5

A.

You just cut out.

Q. Is it okay to refer to you --

6
MR. PETERSEN: Mike, you're cutting
7 out. I'm not sure what's causing that, but we should
8 fix that before proceeding.

Page 9

1
Q. It will be in your role as Dean of Libraries
2 that we -- that I'll be asking you questions today.
3 Can you describe very briefly what your role is as
4 Dean of Libraries?
5
A. I am the chief -- I mean this is not a
6 formal title, but I am responsible for the activities
7 of, again, most of the university libraries, so -- we
8 have several hundred employees and many millions of
9 books, and lots of other materials as well, and the

9
MR. BONI: Oh, great.
MS. DURIE: Why don't you -- I think
10
11 you may need to just pick up your handset.

10 library functions to bring academic works to the campus
11 and also more broadly to the community of scholars and

12

MR. BONI: Yeah. Is this better?

12 interested parties nationwide and worldwide. It does

13
14
15

MS. DURIE: Yes, it is.
MR. BERNARD: Yes.
MR. BONI: All right. I'll do my

13 what libraries -- I mean I could go on at great length
14 what libraries do if that's what you want me to do.
15
Q. No, that's fine. I just really needed a

16 best when it comes time to dealing with the Answer, but

16 brief -- just a brief explanation.

17 okay.

17
A. And I am the one who is responsible to the
18 president and then to the regents for the activities of

18 BY MR. BONI:
19
Q. Dr. Courant, is it okay that I refer to you
20 as Dr. Courant?
21
A. Sure.
22

Q. Okay. Could you please spell your name for

23 the record?
24
A. P-a-u-l, space, N-o-a-h, space,
25 C-o-u-r-a-n-t.

19 the library.
20
Q. And how long have you held the role of
21 Dean of Libraries at University of Michigan?
22
A. A little over five years.
23
Q. Okay. Prior to your -- prior to your title
24 of Dean of Libraries, what position did you hold?
25

A.

Immediately prior I was professor of

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economics, professor of public policy, and professor of
information. Some years -- sometime before that I was
vice president for academic -- executive vice president
for academic affairs and provost, and I can go through
another long list if you wish.
Q. Not necessary. Did you have any role prior
to the time you were Dean of Libraries with respect to
University of Michigan's library system?
A. Well, yes, of course. As provost I was-the library reported to me. The provost is the chief
academic officer of the university, and the library is
a big academic unit. As a faculty member I used the
library frequently.
Q. In your capacity as provost did you have any
involvement in -- strike that. Let me ask this
question. Are you familiar with an initiative known as
the Google Library Project?
MR. PETERSEN: Objection to form.
THE WITNESS: I am familiar with
that project, yes.
BY MR. BONI:
Q. When you were provost did you have any role
with respect to the Google Library Project?
A. Yes, I did.
Q. Could you describe that role?

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A. I was the -- I was the reporting line for
the librarian, so as that project emerged he kept me
generally informed about what was going on, and also
sought my approval for various major aspects. I didn't
get into the details.
Q. Who did get into -- who at University of
Michigan was more responsible than you with respect to
the -- getting into the details of the Google Library
Project?
MR. PETERSEN: Objection to form.
THE WITNESS: Yeah, it's -- you
know, it -- in terms of getting into details,
John Wilkin was the lead person in the library.

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Q. Okay. And you agree, Dr. Courant, that the
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University of Michigan entered into a cooperative
agreement with Google in connection with the Google
Library Project?
MR. PETERSEN: Objection to form and
objection to the extent it calls for a legal
conclusion.
THE WITNESS: There was a
cooperative agreement. There's a document of that
title executed between the University of Michigan and
Google.
BY MR. BONI:
Q. As a result of the -- strike that. At any
time did the University of Michigan receive digital
copies of the books that the University of Michigan
Library permitted Google to scan?
MR. PETERSEN: Objection to form and
objection to the extent it calls for a legal conclusion
as to what constitutes a copy.
MR. BONI: Okay. Where we are, Joe,
there's no need -- you can just say "objection to form"
or this could be a very long deposition. So if you say
"objection to form," it will count.
MR. PETERSEN: Thank you. Thanks
for the advice, Michael. I am defending the

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Page 14

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deposition.
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MR. BONI: I'm not finished. I'm
sony, I'm not finished. And also, I'm happy to
stipulate that there's no need to join one another's
objections. That will -- that will be fine. I'mjust
trying to -- I'm just trying to move it along, that's
all.
MR. PETERSEN: Michael, understood.
I make the objections that I see fit to make. I am
happy if Daralyn makes an objection, if you agree that
Ijoin automatically to that I will not be redundant
then, and I imagine Daralyn feels likewise.
MS. DURIE: I do indeed. Thanks.
Thanks for that, Mike.
MR. BONI: Great. Thank you.
BY MR. BONI:
Q. SO I'm sony, I didn't hear whether you
answered the question or not.
A. I didn't, and I've forgotten what it was,
so-Q. I'll just -- I'll just ask it --I'll just
ask it again. Has the University of Michigan ever
received digital copies of books that Michigan
permitted Google to scan from the University of
Michigan's libraries?

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talking about works in total or an individual work.
MR. BONI: Oh, good. Well, thank
you. Thank you. Okay.
BY MR. BONI:
Q. SO let me clarify then, Dr. Courant. Has
the University of Michigan received digital copies of
individual books that Michigan permitted Google to
digitize-MR. PETERSEN: Objection.
BYMR. BONI:
Q. -- from Michigan'S collection?
MR. PETERSEN: Objection to form.
THE WITNESS: So I think -- I mean
there are -- yes, except I'm nervous about the word
copies as distinct from a copy of a book and a copy of
another book, etcetera.

Page 15

MR. PETERSEN: And I make my same
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objection.
THE WITNESS: I -- let me just
restate it slightly.
BY MR. BONI:
Q. Sure.
A. Google did scan works from the University of
Michigan libraries, and Google -- and we did indeed
receive copies of those scans. Well, copies made from
those scans, digital copies, not legal copies. I don't
know what those are.
Q. Okay. So you did -- Michigan does have
digital copies that it received from Google, correct?
MR. PETERSEN: Objection to form.
THE WITNESS: That is correct.
BY MR. BONI:
Q. And-A. Unless there's some term of art about
"received from" that I'm missing, which is always
possible in these kinds of proceedings.
Q. Well, if you have anything to clarify, that
would be welcome.
MR. PETERSEN: Well, Mike, I think
the issue -- part of the issue with your question, you
said copies. It's unclear whether or not you're

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Q. Tell me what the Hathi Trust is,
3 Dr. Courant.
4
MR. PETERSEN: Objection to form.
5 BY MR. BaNI:
6

Q. As you just used that term.

It is an entity that is resident add and run
8 by the University of Michigan that is a -- stores and
9 makes available under certain circumstances works
A.

10 deposited by academic libraries, mostly from the

11 United States, although we have some non-U.S. members
12 as well.
13
Q. Does the University of Michigan have a role
14 with respect to the Hathi Trust?
15
A. Yeah, I think -- I thought I just said that.
16 The University of Michigan is the -- is the entity that
I see. And is there anyone person more
19 than another at the University of Michigan who is in
20 charge of the Hathi Trust?
21

MR. PETERSEN: Objection to form.
THE WITNESS: John Wilkin is the

23 executive director of the Hathi Trust.
Did the University of Michigan form

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Page 22

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Hathi Trust in conjunction with any other university?
A. The Hathi Trust as such came out of a
conversation that we had with Indiana University.
Q. What is Indiana University's role with
respect to Hathi Trust?
A. It has contributed substantial financial and
technical support, and also operates the mirror site
for the works in the Hathi Trust.
Q. Tell me what you mean by the mirror site.
A. To a first approximation, as I understand
it, and we're again skating away from what I know well,
there is a copy of the deposits in the Hathi Trust in
Ann Arbor, and an identical copy in Bloomington.
Actually, it's not in Bloomington. I believe -- I have
to be careful here. It might be Bloomington, it might
be Indianapolis. I'd have to check.
Q. Are there any other such mirror copies to
your knowledge?
A. No, not to my knowledge.
Q. Are you aware of whether any university
other than the University of Michigan and the
University of Indiana -- or Indiana University who has
a copy of the files that the Hathi Trust has?
MR. PETERSEN: Objection to form,
vague. I'm not clear what files you're referring to.

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BY MR. BONI:
Q. I mean the digital copies of books.
MR. PETERSEN: Same objection.
THE WITNESS: I don't know how
to -- I would be surprised if anybody had the complete
set. I -- that's all I know.
BY MR. BONI:
Q. Okay. You are aware, are you not,
Dr. Courant, that other universities have digital
copies of the books that Google scanned at those
libraries as well, correct?
MR. PETERSEN: Objection to form.
THE WITNESS: So two points. One,
of course a great deal of what's in the Hathi Trust is
in the public domain, and there are many copies in
many places of those works widely used. And second,
there are libraries that participated in scanning
projects with Google that have not deposited all of the
works they received in Hathi Trust, and presumably some
of those hold their own copies. I wouldn't know what
they do.
BY MR. BONI:
Q. At the University of Michigan are there
any -- are there any file copies -- I'm sorry. Are
there any digital copies of the books that the

Page 24

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University of Michigan Library permitted Google to scan
held outside of the aegis of the Hathi Trust?
MR. PETERSEN: Objection to form.
If the witness knows what you're referring to, he can
answer.
THE WITNESS: 1-- if you're
referring to the tape backups -MR. PETERSEN: Only if you know.
THE WITNESS: Yes.
MR. PETERSEN: Mike, why don't you
rephrase that question?
THE WITNESS: Otherwise I don't
know.
BY MR. BONI:
Q. Yeah, I'm sorry. Let me rephrase it. I
couldn't answer it myself. Are -- well, let's do this.
Dr. Courant, when I referred to the phrase digital
copies, could I ask you to agree whether if! use that
phrase I'm referring to the files that Google sent to
the University of Michigan as part of the Google
Library Project?
MS. DURIE: Objection, lacks

23 foundation.
24
MR. PETERSEN: I think that's gonna
25 be cumbersome, Mike. I think you just need to take

Page 23

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each question at a time, and I think you should note
my continuing objection to the use of copies to the
extent it calls for any legal conclusions from this
witness.
THE WITNESS: But I'm supposed to
try to answer it anyhow?
BY MR. BONI:
Q. Yeah.
A. Okay. So -- so again, my issue with copies
is counsel tells me about the legal issues.
MR. PETERSEN: I don't want you -yeah.
THE WITNESS: But I -- you know, the
way in which computers and files work, the physical
integrity of things is fluid, so there's a copy and
then it gets moved from one place to another, and so I
don't -- the actual molecules of things -- actually
they aren't even molecules, the actual electrons, you
seem to be asking if we -- about the specific
configurations of electrons that Google made -returned or allowed -- made copies of or allowed us to
make -- to acquire in the first place as a result of
copying here, and I don't know enough about how these
things work to be able to say anything about what
happens to those particular bundles of electrons.

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MR. PETERSEN: Objection to form.
THE WITNESS: There are of course
2
3 many public domain works held in many places in digital
4 form.
5 BY MR. BONI:
Q. Are you aware of whether among the books
6
7 that Google scanned are books that are not in the
8 public domain, but rather are in copyright?
9
MR. PETERSEN: Objection to form.
10 Objection, calls for a legal conclusion.
11
THE WITNESS: There are works that
12 are -- yes, there are works that are in copyright that
13 were scanned as part of the project.
14 BY MR. BONI:
15
Q. Do you know whether the University of
16 Michigan has tapes of digitized copies of in copyright
17 books from the University of Michigan Library other
18 than the tape backups that you just testified about?
19
A. I am not aware of any such.
Q. Okay. Dr. Courant, are you aware of an
20
21 initiative called the Orphan Works Project?
A. I am.
22
23
Q. What is the Orphan Works Project?
24
A. The idea behind the Orphan Works Project was
25 to identify works that were determined to be in

1 BY MR. BONI:
2
Q. Right. I got it. I think you're giving -3 you give me too much credit. I guess I was asking
4 in response to something you testified to earlier
5 that -- when I asked where these copies were -- why
6 don't I -- why don't I say digital files if the word I
7 used-8
A. Yes, that's better.
9
Q. -- is problematic. Is that a better phrase
10 to describe what Google has given back to the
11 University of Michigan?
12
MS. DURIE: Objection, lacks
13 foundation.
14
THE WITNESS: So digital-- digital
15 files that contain -- contain in some form these works?
16 BY MR. BONI:
17
Q. The books, right.
18
A. That's -- that's okay with me. I know -- 1
19 think I know what we're talking about now.
20
Q. SO we talked earlier about the -- where the
21 digital files were kept, and at one point you said that
22 at some point they were kept under the aegis of the
23 Hathi Trust, and my question was whether any such files
24 today are kept outside of the aegis of the Hathi Trust?
25
A. Anywhere in the world by somebody?

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Q.
A.

No, at the University of Micrugan.
Here I am -- there exist tape backups of the
files, and whether those tape backups are being held
under the aegis of the Hathi Trust or the University of
Michigan Library, not the Hathi Trust, is an
organizational matter that I simply don't know.
Q. What form do these tape backups take? Do
you know, Dr. Courant?
MR. PETERSEN: Objection to form,
vague.
THE WITNESS: And you're not -again, we're talking about technical details. They're,
you know, tapes. Magnetic tapes I assume.
BY MR. BONI:
Q. Okay. These are physical tapes that you can
hold, correct?
MR. PETERSEN; Objection to form.
THE WITNESS: Again, I don't know
their size, but they would -- they are -- they're -yes is my guess is the right answer to that question.
BY MR. BONI:
Q. Okay. Other than the tape backups, are you
aware of any other tapes that hold in digital form the
books that Google digitized from the University of
Michigan's libraries collection?

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copyright through a set of investigations where the
rights holder could not be found, and to make available
to authorized, authenticated users of the University of
Michigan libraries the ability to read those works
online, limited to the number of copies of the original
physical works that we had originally purchased. So
all of these works were works where the University of
Michigan acquired a physical copy at some point.
The works were then scanned by
Google or could also have been scanned by the
university or -- and then the works -- we would explore
to establish that we couldn't find a rights holder, and
once that was established, well established, we would
make the works available on this limited time basis to
members of our community.
Q. Are you aware of any person who has primary
responsibility for the oversight of the Orphan Works
Project?
MR. PETERSEN: Objection to form.
THE WITNESS: Again, the project has
been largely led by John Wilkin.
BY MR. BONI:
Q. Was it John Wilkin's idea?
MR. PETERSEN: Objection to form.
THE WITNESS: It came out of

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I discussions among a number ofleaders both in the
2 library and the university.
3 BY MR. BONI:
4
Q. And who are those leaders?
5

A.

John Wilkin, myself, members of the

6 General Counsel's office, and then consultation with
7 the provost and the president, and others -- surely
8 others on the library staff. We discussed it quite
9 widely before we proceeded.

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Page 36

1 the digital files it received from Google?
2

MR. PETERSEN: Objection to form.

THE WITNESS: And that's a very
3
4 different question, right?
5 BY MR. BONI:

6

MR. PETERSEN: Objection to fonn. I
7 think you need to define what the cooperative agreement
8 is, which one you're talking about.

9 BY MR. BONI:
10
Q. The operative cooperative agreement between

6

Q.

Yes.

7
A. Okay. So could you -- would you state it
8 again?

11 the University of Michigan and Google regarding the

9
Q. Sure. Has the University of Michigan
10 displayed in full any in copyright books from the digit
11 files it received from Google?

12 Google Library Project.
13
MR. PETERSEN: Well, your idea of

12
MR. PETERSEN: You're talking about
13 regardless of licensing status? It's a very broad

14 what's operative might be different than the witness',
15 Mike, so I think if you're referring to an agreement, I
16 think it's appropriate to identify that agreement and

14 question, Mike. It's essentially a meaningless
15 question, so I'll note my objection.
16
MR. BONI: Okay.

17 perhaps put it in front of the witness.
18 BY MR. BONI:
Q. Dr. Courant, are you aware of several
19

17
THE WITNESS: The answer -- so
18 there's a subtlety around the question, the use of the

20 cooperative agreements that are between the University
21 of Michigan and Google?
22

A.

I'm specifically aware of two. There may be

23 more.

19 word display. So there are certainly some in copyright
20 works that were produced in connection with the Google
21 project that have been and indeed in a moment, I want
22 to be very careful about this, are available to the
23 general public. The ones that are, in every case
24 that we know of have been specifically authorized to be
25 so by the rights holder. This happens quite
Page 37

frequently. So that -- so that answer is yes in that
2 limited way.
3 BY MR. BONI:
4
Q. SO let's -- has the University of Michigan
5 displayed any in copyright book from the digital files
6 it received from Google as part of the Google Library
7 Project that was not authorized by the rights holder?
8
A. To my knowledge there have been a handful of
9 such cases.
10
Q. Under what circumstances have those displays
11 been made?
12

A.

The Copyright Review Management System,

13 which we use to ascertain the copyright status of works
14 published after 1922 and before some important date in
15 the late '60s that I can't remember, maybe it's the
16 early '60s, has misidentified a -- as I said, a handful
17

A.

Not to my knowledge, no.

17 of cases that were then available for a time.

18
Q. Has the university -- strike that. Has
19 Hathi Trust displayed any in copyright books in full in

18
Q. All right. Misidentified a handful of cases
19 that what?

20 connection with the Orphan Works Project?

20
A. That were then available on the -- from the
21 website for a time.

21
22

MR. PETERSEN: Objection to fonn.
THE WITNESS: No.

23 BY MR. BONI:
24
Q. Do you know whether the University of
25 Michigan has displayed in full in copyright books from

22

Q.

And to whom were they made available?

23
MR. PETERSEN: Objection.
24 BY MR. BONI:
25

Q.

Not the individual names obviously, but

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Page 38

1 generally to whom were they made available?
2
MR. PETERSEN: Objection to form.
3 Objection, mischaracterizes Dr. Courant's testimony.
4

THE WITNESS: They could have been

5 found by somebody with an Internet connection in the
6 United States.
7 BY MR. BaNI:
8
Q. And when you say a handful, how many are
9 you -- how many books are you referring to?

Page 40

1 cases.
2 BY MR. BaNI:
3
Q. You don't have actual knowledge of that
4 occurring anywhere outside of the University of
5 Michigan, correct?
6
7

MR. PETERSEN: Objection to form.
THE WITNESS: I have -- I have no

8 specific knowledge of it happening elsewhere.
9 BY MR. BaNI:

lOA. I would be really surprised if it got very
11 far into the double digits and not surprised if it

10
Q. Okay. What are Hathi Trust -- Hathi Trust's
11 plans going forward with respect to the Orphan Works

12 didn't get into the double digits at all.
13
Q. SO somewhere between 10 and 99?

12 Project?
13
A. The University of Michigan has plans to

14
MR. PETERSEN: Objection to form,
15 mischaracterizes the testimony.
16
THE WITNESS: I would be very, very

14 continue to work to identify orphan works, and
15 that's -- in fact, we are continuing to work to
16 identify orphan works.

17 surprised if it were anywhere near 99.

17
Q. Anything else? Is it limited to the
18 identification of orphan works?

18 BY MR. BONI:
19
Q. You think it was closer to 10?
20
A. Yes.
21
Q. And for how long were those books made
22 available as a result of the misidentification of those

19
MR. PETERSEN: Objection to form.
THE WITNESS: That work is certainly
20
21 work that we are committed to doing. We said at the
22 time that we suspended the movement towards actually

23 books' copyright status?
24
MR. PETERSEN: Objection to form.

23 allowing members of our authorized and authenticated
24 campus community to read these works one at a time in

25

25 digital form, we said that we intended to learn and

THE WITNESS: One would have to look
Page 39

Page 41

1 at the record case by case, which I certainly haven't
2 done.

1 study and reassess our procedures and practices, and
2 that's what we're currently engaged in.

3 BY MR. BaNI:
4
Q. Who would be the person in the best position
5 to answer that question?
6
A. Again, John Wilkin.

3 BY MR. BaNI:
4
Q. Is it the intention of the Orphan Works
5 Project to present for reading the full text of in

7
Q. Okay. Dr. Courant, are you aware of any
8 other university that displayed in copyright books to

7 holder?
8
MR. PETERSEN: Objection to form.
9 Objection, asked and answered.

9 anyone without the authorization of the rights holder?
10
MR. PETERSEN: Objection. Objection
11 to form.
12
THE WITNESS: So I would not -- I
13 don't know -- when you say other you're presumably
14 including the University of Michigan, and I'm not sure
15 that these instances I've described rise to the level
16 of display, and I don't specifically know of other
17 cases.
18 BY MR. BaNI:
19
Q. Well, I'm referring to any instances outside
20 of the University of Michigan.
21
MR. PETERSEN: Objection to form,
22 asked and answered.
23

THE WITNESS: Right. And so if

6 copyright books without the authorization of the rights

10
THE WITNESS: It's a -- it's -- is
11 it the intention of the project to do that? It
12 certainly was in its -- well, I don't -- without the
13 authority of the right holder, given that we already
14 bought a copy and we're just substituting for it, I can
15 dance around, but that was the original intention as I
16 described it, that we would make individual copies
17 available to members of the community where the library
18 had already purchased a copy of the book, and the
19 current status of the project is that we are -- we are
20 considering what comes next.
21 BY MR. BaNI:
22
Q. Okay. Dr. Courant, could you describe for

24 you're asking -- 1 could speculate that this plausibly

23 me the -- all of the uses which you are aware ofthat
24 the University of Michigan has made with the digital

25 has happened, but I do not know of any particular

25 files it received from Google as part of the Google

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Library Project?
MR. PETERSEN: Objection to form.
Objection, calls for a narrative. Can you ask a more
focused question?
MR. BONI: Yeah, I just want an
answer as to all of the uses. I don't think it calls
for a narrative at all. It calls for a list. It's
okay.
MR. PETERSEN: Same objection.
THE WITNESS: So our uses of digital
files?
BY MR. BONI:
Q. Yes.
A. They're available for search, the works
where -- that are in the public domain or where the
rights holder have authorized us to do so are available
to be read, and in some cases downloaded. The works
that we believe -- that we do not know to be in the
public domain or authorized by the rights holder are
only available for search.
And the works have also been
used to be -- by people with certified print
disabilities under -- under the university'S relevant
office for such certification. I'm trying to think
what else. We have not yet -- yeah, I think I'll stop

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distinct from to read? Yes?
Q. Yeah. Fair distinction. Let's take both.
A. Big distinction.
Q. To search the text.
A. To search the text for phrases or names or
something like that, essentially the entire corpus
of works held in the Hathi Trust, including the
works contributed to the Hathi Trust by the University
of Michigan, are available to search by essentially
everyone in the United States with an Internet
connection.
Q. And then the same question with respect to
availability to read the text of those works; that is
to say, works that are in copyright and were not
digitized with the authorization of the rights holders?
MR. PETERSEN: Mike, that was
complicated. Can you put that question together? It
was a complicated question to begin with, and 1-MR. BONI: Yeah, sure.
BY MR. BONI:
Q. Who -- to whom does the University of
Michigan make available for reading purposes the
digital files of in copyright books that were digitized
by Google without the authorization of the rights
holders?

Page 43

Q. Great. So -- thank you. You mentioned
that the digital files are used by people with print
disabilities. Are those people limited to the
University of Michigan community, or anyone?
A. With respect to works that are from the
University of Michigan files, yes, I believe it is
limited to just the University of Michigan certified
users.
Q. And what is a certified user? What makes
someone a certified user?
A. There's an office in the university that
determines whether people have print disabilities, and
then of course the person has to be a member of the
university community.
Q. With respect to digital files of books that
are in copyright and that were digitized without the
authorization of the rights holder, to whom are those
works or those digital files available for search
purposes?
MR. PETERSEN: Objection to form.
BY MR. BONI:
Q. You said you made them available for search.
I'm asking available to whom?
A. So to search for the -- search text as

Page 45

MR. PETERSEN: Objection to form.
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THE WITNESS: Again, the -- not
3 knowing specifically about what the rights holders
4 would think of such matters, the people with certified
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print disabilities who are members of the university
community and incidentally to their duties to preserve
the integrity of the files and such, so technical
library work and computer work, the staff who are
responsible for doing that work. They don't read the
whole book, but they would have to read parts of books
in order to do their work. That's it.
BY MR. BONI:
Q. And nobody other than those members of the
University of Michigan community with print
disabilities or those staff members in connection with
the library or computer work are able to read the text
of in copyright books whose digital files were given to
the University of Michigan by Google?
MS. DURIE: Objection, lacks
foundation.
THE WITNESS: Whose -- and it's
not -- if you put it that way, then that's not right
because there are works that were -- in copyright works
that were made available to the University of Michigan
through the -- from Google as part of this project

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where we do have authorization from the rights holder.
BY MR. BONI:
Q. Right. So let me limit it to those works
where the rights holder did not give authorization.
A. So let me just try to see ifI can get this
set winnowed down to what it is. These are works that
are in copyright, digitized by Google, a copy has come
to the University of Michigan, and you're asking who
can read the text of those works?
Q. Correct.
A. Right.
Q. You mentioned those at the University of
Michigan with print disabilities and then stafffor
technical and computer purposes -A. Yes.
Q. -- and I'm asking you whether there is
anyone else.
A. There are some staff who are not staff at
the University of Michigan associated with the mirror
site at Indiana, and that's all I can think of.
Q. Okay. Do you know whether any research
has been conducted on the digital files which -- where
the research does not involve reading the text of the
books?
MR. PETERSEN: Objection to form.

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Page 48

continue to take works from the project and put them
into the Hathi Trust, so in that sense that's an active
role I would say.
Q. In any other sense?
A. What sort of sense did you have in mind?
Q. Well, for example, does it have a role in
the governance of Hathi Trust?
MR. PETERSEN: Objection to form.
THE WITNESS: No.
BY MR. BONI:
Q. Does it control Hathi Trust's activities in
anyway?
A. In the conventional use of the word control,
no.

Research by whom?
BY MR. BONI:
Q. Anyone at the University of Michigan.
A. So I actually don't specifically know
because the cases that I know of, the kind of research
you're describing, have largely been done on Google's
files, but I would -- you know, so I don't specifically
know is the right answer.
Q. What research has been done on Google's
files?
A. Well, there's the engram project, which
looks for the frequency of words in various languages
over time, other elements of linguistic research,
largely around questions of language, language
development.
Q. Has the University of Michigan been involved
at all with those projects?
A. The University of Michigan as a corporate
entity has not. It's possible that faculty and staff
and students at the University of Michigan have done

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Page 47

21 some ofthat work.
22
Q. Dr. Courant, does Goog1e have any role,
23 active role in connection with the operations of
24 Hathi Trust?
25
A. Google continues to digitize works, and we

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7 here's what I'd like to do. I'd like to take a
8 five-minute break, and then I'm going to spend a few
9 minutes on the Answer, and then I'll be finished.
10
MS. DURIE: Okay.
MR. PETERSEN: That sounds good.
12 Thanks, Mike.
13
MR. BONI: Okay.
14
THE VIDEOGRAPHER: We're going off
15 the record, the time is 2:56 p.m.
16
(There was a recess taken.)
THE VIDEOGRAPHER: We're back on the
18 record, the time is 3:10 p.m.
19 BY MR. BONI:
Q. Dr. Courant, is Google still digitizing
21 books from the University of Michigan libraries

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MR. BONI: Let me ask the court
2 reporter to put in front of the witness what has been
3 premarked UM 1 and UM 2.
4
MR. PETERSEN: So it's actually-5 it's marked Courant 1 and Courant 2 -MR. BONI: Oh, Courant.
MR. PETERSEN: -- Mike, and I'll let
8 you know that Courant 1 is the First Amended Complaint
9 and Courant 2 is the joint Answer and Defenses.
10
MR. BONI: Great. Thanks. And do
11 you guys -- I take it you and Daralyn have a copy?
12
MS. DURIE: We do.
MR. BONI: Okay. It doesn't matter
14 to me, but I know that there -- there is a deposition
15 in the other case, and I didn't want to confuse that
16 this was a -- this is a subpoena to the University of
17 Michigan, but Courant 1 and Courant 2 is fine with me.
18 BY MR. BONI:
Q. Dr. Courant, let me ask you whether you
20 recognize what has been marked Courant 1?
21
A. I haven't flipped through this copy of it,
22 but yes.
23
MR. PETERSEN: Why don't we give
24 Dr. Courant a few moments, Mike, to take a look at what
25 has been marked Exhibit 1.

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Page 62

1 BY MR. BONI:
2
Q. Take all the time you need.
3
A. I may need more time if you start asking
4 specific questions about it, but I've seen this
5 document before I read it.
Q. Right. I only asked whether you recognized
6
7 it and if you could simply, in your own words, describe
8 what it is?
9
A. Well, I recognize it, and it's my
10 understanding that it is a Complaint from the
11 Authors Guild and a number of other entities against
12 the University of Michigan and a number of other
13 entities with respect -- with regard to copying and
14 holding a number of digital files at the University of
15 Michigan and in the Hathi Trust.
16
Q. Have you read the Complaint, the First
17 Amended Complaint prior to today, sir?
18
A. Yes.
19
Q. How recently have you read it?
20
A. Quite some time ago.
21
Q. Okay. And am I right that a copy of the
22 Complaint is kept somewhere at the University of
23 Michigan, at the offices of the University of Michigan?
24
MR. PETERSEN: Objection.
25 Objection, lacks foundation.

Page 64

1 copies in a repository called the Hathi Trust Digital
2 Library, which contains at least 9.7 million volumes.

3 My question is whether that number is accurate today
4 or do you have another number for the number of
5 volumes?
6
A. The number of volumes now exceeds
7 10 million. I don't have an exact number for today.
Q. Okay. But it exceeds 10 million?
8
9
A. Yes.
10
Q. Do you have any sense of what percentage of
11 the volumes are protected by U.S. copyright laws?
12
MR. PETERSEN: Objection to form,
13 vague. Objection, calls for a legal conclusion.
14 Objection, lack offoundation.
15
THE WITNESS: I have a --I could
16 speculate within a range, but I have no exact knowledge
17 of what works are in copyright because it's actually
18 quite difficult to determine whether a work is in
19 copyright in many cases.
20 BY MR. BONI:
21
Q. Okay. On what do you base your ability to
22 speculate as to a range of the percentage?
23
MR. PETERSEN: Objection to form,
24 vague. Mike, can you rephrase that?
25
MR. BONI: Yeah.

Page 63

Page 65

THE WITNESS: I just -- I would be
2 shocked if it were otherwise, but I do not know.

1 BY MR. BONI:
2
Q. You said that you can speculate as to the

3 BY MR. BONI:
4
Q. Let me ask you to look at Courant 2. Take
5 all the time you need review it, and then I'll ask you

3 percentage, so I'm asking -4
MR. PETERSEN: I don't think you
5 want a record with speculation on it, Mike. I think
6 you need to --

6 questions about it.
A. Yes.

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Q.

Do you recognize that document, Dr. Courant?

A.

I do.

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Q.
A.

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What is it?
It is, as I understand it, since these are
all matters of legal form in which I have no expertise,
but this is the response of our attorneys to that
Complaint that we just discussed.
Q. Okay. And have you read -- have you read
this document before today?
A. Yes.
Q. Do you know how recently you read this
document?
A. I read it first quite some time ago, and I
looked through it over the last few days.
Q. Let me ask you to turn to the bottom of page
three, the last two lines, where it reads, the uni -this is the second -- this is the latter part of a
long sentence. The university stored these digital

7 BY MR. BONI:
8
Q. I didn't ask for that. I'm asking how you
9 can -- how you can give us a range of the percentage,
10 Dr. Courant?
11
A. Well, I may be being a little too much the
12 empirical economist that I am, and so I make -- I make
13 speculations on such data as I have. We consistently
14 find -- we know that somewhere around 27 or 28 percent
15 of the works are in the public domain, and I think it's
16 reasonable to expect that the majority of the works
17 that we haven't made that determination of are in

118

copyright, and that would be a pretty broad range. So
19 that's about as far as I can go.
20
Q. Okay. Did you serve any role in the

21 preparation of the Answer to the First Amended
22 Complaint, what you have before you as Courant 2?
23
24 vague.
25

MR. PETERSEN: Objection to form,
THE WITNESS: I looked at parts of

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it when it was being drafted.
BY MR. BONI:
Q. Prior to the time that it was filed?
MR. PETERSEN: Mike, you're getting
close. Obviously this is a legal document that was
filed in connection with a lawsuit. There's a
privilege issue.
He can answer if he's seen the
document before, but I'm going to assert privilege with
respect to communications with counsel concerning the
document and those types of issues on timing as to -as to timing as well, so -MR. BONI: Well, I'm not asking with
whom -- actually, I could ask with whom he spoke, but
I'm not, and I'm not asking what was said. I'm simply
asking whether Dr. Courant reviewed the Answer prior to
the time that it was filed with the court.
MR. PETERSEN: He can answer that
question -- if he recalls, then he can answer that, but
in terms of any issue of substance, I'm going to assert
the privilege.
MR. BONI: Okay.
THE WITNESS: I believe that I was
in on discussions of the content of this before it was
filed, but I may be remembering incorrectly.

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BY MR. BONI:
Q. Okay. At paragraph three on page four, it
states that Defendants admit that UM and UC have
announced their participation in the Orphan Works
Project, an initiative to, inter alia, identify orphan
works, and then hyphen, in copyright works for which
the copyright holder cannot be found, hyphen, and
eventually to make lawful uses of these works. Do you
have an understanding of what is meant in that
admission by the word eventually?
MR. PETERSEN: Objection to form.
THE WITNESS: In the -- in the
context of the announcement, after there was
determination that the work was an orphan work,
including an open period in which the work would be
displayed to the world as a potential orphan work, we
would get to I think eventually.
BY MR. BONI:
Q. And as you sit here today, is it still
the -- is it still the aim of the Orphan Works Project
to identify orphan works?
MR. PETERSEN: Objection to form,
and objection, asked and answered. I believe
Dr. Courant has already -MR. BONI: Yeah. You know what, I

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think you're right, so let me strike that. I do recall
asking that question before.
BY MR. BONI:
Q. What is meant in that statement by the term
to make lawful uses of these works?
MR. PETERSEN: Objection to form and
objection, calls for a legal conclusion.
THE WITNESS: So there are lots of
plausible lawful uses of works -- of these works. One
of them would be to make a list of them and make that
list pUblic. And, you know -- and -- and there may
well be uses -- reading uses of these works that are
lawful, including ones for the print disabled, and
when this project -- as this project was designed on
advice of counsel we had intended to make the works
available to members of our community and -MR. PETERSEN: I instruct the
witness not to divulge any attorney/client information.
THE WITNESS: I'm sorry, okay. So
the uses that we talked about earlier in response to a
similar question.
BY MR. BONI:
Q. Did anyone tell you why Indiana University
has not announced plans to participate in the Orphan
Works Project?

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A. I don't recall having a specific
conversation with people from Indiana about that.
Q. Do you have any knowledge as you sit here
today as to why Indiana University has not announced
plans to participate in the Orphan Works Project?
MR. PETERSEN: Objection to form and
objection to the extent it calls for speculation.
THE WITNESS: Yeah, I just, you
know -- I find that speculating on other people's
motives isn't a very good move.
BY MR. BONI:
Q. You have no idea why it made that decision?
MR. PETERSEN: Objection, asked and
answered.
THE WITNESS: Am I supposed to
respond?
BY MR. BONI:
Q. Yeah, you can respond.
A. So I have lots of ideas. Ijust have no
knowledge.
Q. Right. What are those ideas?
MR. PETERSEN: Objection, it calls
for speCUlation. The witness told you he has no
knowledge.
MR. BONI: I'd like to know what his

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1 ideas are. He just testified as to having ideas.
2

Page 72

1 would be made available to authorized and authenticated

THE WITNESS: Somewhere in their

2 members of the University of Michigan community on the

3 decision process they decided not to.
4 BY MR. BONI:
5
Q. Why not?
6
A. I don't know.
7
MR. PETERSEN: Same objection.
8 BY MR. BONI:
9
Q. And so when you testified that you had
10 ideas, do you have any other ideas as to why

9 checked it out, but they could do it from their donn
10 room.

11 Indiana University has not announced plans to

11 BY MR. BaNI:

12 participate in the Orphan Works Project?
13
MR. PETERSEN: Objection to fonn.

12
Q. Okay. Let me ask you to tum to page ten.
13 The last sentence of paragraph 34, it's at the top of

3 basis that they could, on a -- such that they could
4 have reading access to it digitally online per the

5 number of books of that -- works of that title that we
6 had purchased in print form. In other words, they
7 would have essentially exactly the same use ofthe work
8 that they would have if they went into the library and

14 Objection, calls for speculation. Objection, asked and 14 page 10, says the Defendants further admit that UM is a
answered.
15 co-founder, host, and primary administrator of the
THE WITNESS: I assume that they
16 Hathi Service -- I'm sorry, the Hathi Trust Service and
didn't -- haven't announced plans because they don't
17 is the largest contributor to the HDL, which contains
mean to participate.
18 the collection of digital works with respect to which

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BYMR. BONI:
Q. Do you know why they don't mean to

19 the Hathi Trust Service operates. Do you see that
20 language, Dr. Courant?

21 participate-22
A. I do not know why.
23

Q.

21
A. Yes, poetry.
22
Q. What is meant by the term host in that
23 statement?

-- in the Orphan Works Project?

24
MR PETERSEN: And objection, asked
25 and answered.

24

MR. PETERSEN: Objection, lacks

25 foundation.

Page 71

1

THE WITNESS: I don't know Why.

2 BY MR. BONI:

Q. Let me ask you to turn to paragraph 13 on
4 page five. Are you there?
5
A. Urn-hum.
6
Q. I have the handicap of not seeing whether
7 you're here or not.
8
A. I'm here.
9
Q. Okay. The first sentence says, Defendants
10 admit that a book entitled "Good Troupers All: The
11 Story of Joseph Jefferson" by Gladys Malvorn was
12 digitized and included in the HDL and was
13 preliminary -- preliminarily identified as a book that
14 UM planned to make available on the limited basis
15 contemplated as part of the OWP if the copyright holder
16 were not identified, and then the sentence goes on. Do
17 you see that language, Dr. Courant?
18
A. I do.
Q. Can you tell me what is meant by the phrase
19
20 on the limited basis contemplated?
21
MR. PETERSEN: Objection to form.
THE WITNESS: Yes. As I believe
22
23 we've already discussed, works that were identified
24 as a -- as orphan works, which this work was not, it
25 was only preliminarily identified as an orphan works,
3

Page 73

THE WITNESS: The U ofM is the
2 place where and whence the works are held and can be
3 found and searched, etcetera.

4 BY MR. BONI:
5
Q. Do you know how it came to be that the

6 University of Michigan would be a host of the works, of
7 the digital files?
8
MR. PETERSEN: Objection to form,
9 vague.
10
THE WITNESS: The U of M at the time
11 that the Hathi Trust was founded already had the -- as
12 it says in this sentence actually, the largest
13 collection of such works and a active and functional
14 set of procedures for hosting them, and so we continued
15 in that role because we were the entity that was doing
16 that work already.
17 BY MR. BONI:
Q. How did the U of M come to develop an active
18
19 and functional set of services in that regard?
20
MR. PETERSEN: Objection to form.
21
THE WITNESS: We've discussed -- we
22 discussed earlier today the relationship -- the
23 U of M's making -- having files that came from the
24 Google scans. We put those -- used those files -- used
25 those files. We store those files on servers

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maintained by U of M subject to a set of protocols, and
the -- and so the starting place of Hathi Trust was
that there were already many books that were being held
by U of M, the U of M library at that point, in this
way.
BY MR. BaNI:
Q. And that is as a result of the Google
Library Project?
MR. PETERSEN: Objection to form.
THE WITNESS: Yes.
BY MR. BaNI:
Q. What is meant by -- so is UM the only host,
or are there any other hosts? Is Indiana University-let me ask this question. Is Indiana University also a
host?
A. So if the word host is a legal term of art
then I have to pull back because I don't know what
its -- what its meaning is.
Q. I'm not asking it as a legal term of art at
all.
MR. PETERSEN: Mike, why don't you

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Q. I don't know how it would be a legal term of

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art.

Page 76

1 BY MR. BaNI:

2

Q.

Is Google also an administrator of the Hathi

3 Trust Service?
4
A. Not in any sense that I understand.
5
Q. Okay. Are the other -- are the other
6 schools in which U of M have those bilateral agreements
7 considered administrators of the Hathi Trust Service?

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MR. PETERSEN: Objection to form.
THE WITNESS: No, I shouldn't think
so.
BY MR. BaNI:
Q. So is U of M the only administrator of the
Hathi Trust Service?
MR. PETERSEN: Objection to form.
THE WITNESS: I think that this -this language either contemplates the U of M alone or
U of M and Indiana, Indiana in its role as the mirror
site.
BY MR. BaNI:
Q. Fair enough. Let me ask you to turn to the
bottom of page 11. The last sentence on that -- I'm
sorry, the second to last sentence on that page reads,
Defendants admit that a fully operational, synchronized
and live mirror site of the HDL is located on lU's
Indianapolis campus. Do you see that language,

Page 75
Page 77
MR. PETERSEN: Why don't you define
1 Dr. Courant?
A. Yes.
host, Mike? That might be helpful.
2
Q. Is this what you were referring to
MR. BaNI: Well, it's in your
3
4 previously as Indiana's mirror site -Answer, and we asked anyone to step forward on behalf
of the University of Michigan to speak about the
5
A. Yes.
Answer, and here's Dr. Courant, so I'm asking what is
6
Q. -- of the Hathi Trust Digital Library?
7
A. Yes.
meant in the Answer by host.
8
Q. What is meant by synchronized? Do you know?
MR. PETERSEN: And to the extent the
9
witness knows, he can answer. To the extent he doesn't
A. I think that's a technical term in the
10 context of the computing activity, and so I would not
know, it's appropriate for him to say he doesn't know.
11 opine on what it means in detail.
THE WITNESS: So as the -- as a host
for a copy of the files, both Michigan and Indiana are
12
Q. Do you know whether Indiana University
13 offers for reading the full text of in copyright books
hosts.
14 to members of its community who are print disabled?
BY MR. BaNI:
Q. University of Michigan is a primary
15
MR. PETERSEN: Objection to form.
administrator of the Hathi Trust Service; is that
16
THE WITNESS: I do not know.
correct?
17 BY MR. BONI:
18
Q. Do you know -- do you know what uses
MR. PETERSEN: Objection to form.
19 Indiana University makes of its mirror site of the
THE WITNESS: The Hathi Trust
Service takes place under a series, a set of -- a
20 Hathi Trust Digital Library?
21
MR. PETERSEN: Objection to form.
large set of bilateral contracts between the University
of Michigan and other universities and research
22
THE WITNESS: The principal use
23 would be to store a duplicate set of the files.
entities, research libraries around the country, and
thus the University of Michigan is the primary
24 BY MR. BaNI:
Q. Do you know whether it does anything with
administrator.
25

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Page 78

the mirror set of the Hathi Trust digital files other
2 than that?
MR. PETERSEN: Objection to form.
3
THE WITNESS: I do not know.
4
5 However, I would expect that they would -- the use -6 any use would be through the Hathi Trust interface.
7 BY MR. BaNI:
8
Q. What do you mean by the Hathi Trust
9 interface?
10
A. www.hathitrust.org gives one a way of
11 getting to many services of the Hathi Trust, largely
12 around -- search around all works, as I've pointed out,
13 and reading use of public domain works or other works
14 that have been authorized for such use, and the
15 institutions -- both institutions who are part of the
16 Hathi Trust and institutions who are not, and just
17 ordinary folks anywhere can go there and make those
18 uses, and that is the mechanism that people use in
19 order to make uses -- any uses of those files.
20
Q. SO by Hathi Trust interface you meant
21 Hathi Trust's website, correct?
A. Yeah.
22

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digital copies deposited in the HDL by some
institutions have been delivered to the HDL over the
Internet or via removable media, and then the sentence
goes on. Do you see that language, Dr. Courant?
A. Yes.
Q. By whom have the digital copies been
delivered to the Hathi Trust Digital Library?
MR. PETERSEN: Objection to form.
THE WITNESS: Do you want the names
of people? 'Cause I wouldn't know.
BY MR. BaNI:
Q. Or entities. Either one.
MR. PETERSEN: Objection. Same
objection.
THE WITNESS: The -- many
entities-BY MR. BaNI:
Q. Well, let me cut it short. Is Google one of
those entities?
A. Yes.
Q. And earlier today you testified that the
digital copies were delivered to the HDL over the
Internet, but that you didn't know the inner workings
of that. I'm paraphrasing. Do you recall that
testimony?

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MR. PETERSEN: Objection,
mischaracterizes the testimony.
MR. BaNI: Yeah, I don't mean to do
that.
THE WITNESS: I actually resisted
the phrase "over the Internet" because I was concerned
that that might imply the open web, and -- but so -- is
that good enough?
BY MR. BaNI:
Q. What term would you have used?
MR. PETERSEN: Objection, asked and
answered. He did answer these questions, Mike, at the
beginning of the deposition.
MR. BaNI: I don't think he answered
what term he would use instead of "over the Internet."
MR. PETERSEN: I think he said
secured server or words to that effect.
THE WITNESS: Yeah, I would -- I
would have said something about optical -- optical
fiber networks. Optical fiber networks.
BY MR. BaNI:
Q. Okay, all right. But not over the worldwide
web?
A. Again, I don't know the details of how these
things work, but not in an insecure way.

Page 81

23
Q. Let me ask you to turn to page 17, please.
24 At paragraph 63, the second sentence reads, UM Regents,
25 the Hathi Trust Service, and UC Regents admit that

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1

Q. Okay. And then where it says via removable
2 media, do you have an idea of what is meant by

1 tapes are secured in any way from theft or misuse?
2
A. I believe that they are.

3 removable media?
4
A. At least in some cases hard drives, maybe

3
Q. Do you know how?
4
A. We're now way beyond my expertise. I
5 know that the people who are responsible for holding

5 other media as well.
6
Q. Okay. Does UM have those hard drives today?

7
A. I do not know.
8
Q. SO you would not know that if you had them
9 where they would be kept, right?
10
MR. PETERSEN: Objection. Objection
11 to form.
THE WITNESS: I think that follows,
12
13 yes.
14 BY MR. BONI:
15
Q. Okay. Let me ask you to go to paragraph 64
16 on page 18. It says at the top of the page, Defendants
17 admit that the incorporation of digital works and
18 their associated metadata into the HDL is performed at
19 MLibrary. What is -- what exactly goes into
20 incorporating the digital works and their associated
21 metadata?
MR. PETERSEN: Objection to form.
22
THE WITNESS: I can't tell you
23
24 exactly, but the HDL has a bibliographic record for the
25 works in it, and so when the works are taken into the
Page 83
1 HDL, the associated metadata, title, author, publisher,
2 date, all this stuff that we carry around with records
3 of works has to be carefully linked to the works

4 themselves, made findable and so forth, and so

5 that's -- that's in broad outline the work that's being
6 done here as I understand it.
7 BY MR. BONI:
8
Q. And who at Michigan Library does that

9 incorporating?
lOA. The -- largely John Wilkin's staff. In
11 fact, I think exclusively John Wilkin's staff.
12
Q. Okay. In the next sentence it says
13 UM Regents, the Hathi Trust Service and IV Trustees
14 admit that the digital works and associated metadata
15 are replicated to an active mirror site located on
16 IV's Indianapolis campus and are stored on backup tapes
17 located at UM's facilities. Do you know -- and then
18 the sentence goes on. Do you know where at UM's
19 facilities the backup tapes are located?
20
MR. PETERSEN: Objection, vague.
21
THE WITNESS: I don't off the top of
22 my head, although there are addresses where those sites
23 are.
24 BY MR. BONI:
25

Q.

Do you have any idea of whether those backup

6 those tapes are experienced in holding such things
7 securely.
8
Q. Are they employees -- those people to whom
9 you are referring, are they employed by University of
10 Michigan?
11
A. Yes.
12
Q. Okay. So this is U of M staff who are
13 responsible for the security of the backup tapes?
14
MR. PETERSEN: Objection to form.
15 Objection, asked and answered.
16
THE WITNESS: Yes.
17 BY MR. BONI:
18
Q. Who -- do you know who is in charge of that
19 staff?
20
A. The tapes are held by the Information
21 Technology Services at the university. The director of
22 that operation, the Chief Information Officer of the
23 university, is named Laura Patterson.
24
Q. And she's the chief technology officer at
25 U ofM?
Page 85

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2

A.

Q.

She's the ChiefInformation Officer.
All right, okay. Chief information, CIa,

3 all right. Who replicated the digital works and
4 associated metadata to the active mirror site at ill's
5 Indianapolis campus?
6
MR. PETERSEN: Objection to form.
7
THE WITNESS: That work would have
8 been done under the general direction of John Wilkin
9 and his counterpoints at Indiana -- counterparts at
10 Indiana.
II BY MR. BaNI:
12
Q. Okay. On page 19 in paragraph 67, it's
13 right in the middle of the page, it 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.Ido.
19
Q. In what way does Hathi Trust preserve the
20 books referenced here?
21
MR. PETERSEN: Objection to form.
22
THE WITNESS: The Hathi Trust is an
23 operation of the library and has a time scale for
24 preserving its assets that extends into the indefinite
25 future.

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Page 86
BY MR. BaNI:
Q. What are its assets?
A. Its holdings, copies of works. Assets may
not have been the best word, but copies of works. And
works are subject to -- print works are subject to all
manner of risk of deterioration and destruction over
time, and so the sense in which these works are
preserved is that we would intend to keep a copy, as I
said, into the indefinite future against the
possibility that the -- that other copies would
disappear.
MS. DURIE: Can you do me a favor?
Can I just get you to move the bottle to one side? The
videographer was just saying it was blocking.
THE WITNESS: Oh, sure.
MS. DURIE: Thanks.
BY MR. BaNI:
Q. Let me ask you to turn to page 21, paragraph
78.
A. I'm there.
Q. There is a block quote there. It appears to
be a statement from Michigan Library. And it states,
this tells us that our pilot process is flawed,
referring to the potential orphan works. Can you tell
me what that -- what is meant by the pilot process
Page 87
being flawed?
A. Yeah. It's actually stated very well in the
previous sentence. The close and welcome scrutiny of
the list of potential orphan works has revealed a
number of errors, some of them serious. The errors
were classifying some things as potential orphan works
that in -- that -- that we should have been able to see
more easily than we did were actually not potential
orphan works.
Q. Has the pilot process changed as a result of
the errors -MR. PETERSEN: Objection to form.
BY MR. BaNI:
Q. -- discovered?
MR. PETERSEN: Objection, lacks
foundation.
THE WITNESS: We are -- we are -- we
have changed a good deal of the process in response to
what we learned last fall.
BY MR. BaNI:
Q. How so?
A. Here, to get into the details I would have
to refer to the people who do the work in detail, but
more time, more care, more eyeballs on the case.
Q. Are there other sources that are considered?

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Page 88
MR. PETERSEN: Objection to fonn,
2 vague.
3
THE WITNESS: Other than what?
4 BY MR. BONI:
5
Q. Sources. Do the people who do the -- who
6 try to identifY orphan -- you know what, let me ask you
7 this question. Throughout the deposition you've
8 referred to the tenn orphan works. What do you mean by
9 orphan works?
lOA. Works that are in copyright for which a
II rights holder cannot be found.
12
Q. For those at U ofM seeking to identifY-13 trying to identifY the rights holders of potential
14 orphan works, do you know whether those people have, as
IS a result of the errors identified, considered other
16 sources, other sources to determine the identity of the
17 rights holders?
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MR. PETERSEN: Objection, fonn,
19 vague. Objection, lacks foundation.
20
THE WITNESS: And I need ask, other
21 sources than what?
22 BY MR. BONI:
23
Q. Yeah, other -- other -- other sources of
24 investigation, of research?
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MR. PETERSEN: Objection, same
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Page 89
objection. And it lacks foundation.
THE WITNESS: So I don't know at -I mean when you improve a process you do things other
than what you did before, so that answer would be yes.
But I -- the use of the word sources, this isn't a
matter oflooking things up in the International
Register of Orphan Works. If we had that we would in
much better -- this it wouldn't be a problem.
BY MR. BaNI:
Q. Understood. So tell me -- tell me what you
know about what is done to identifY the rights holders
of potential orphan works -MR. PETERSEN: Objection.
BY MR. BaNI:
Q. -- as part of the Orphan Works Project?
MR. PETERSEN: Objection, asked and
answered.
THE WITNESS: I note that it's very
important here to be considering -- there's a potential
orphan works part of the process, and then there is a
part of the process that involves publishing the list
of potential orphan works and inviting the world to
comment on that, and that part of the process actually
has worked well in that it has identified a number of
works that were potential orphans that proved not to

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be, and I actually believe that that will be a vital
part of any process going forward to identify -- to
identify orphan works.
The first thing was to look for is
the publisher still alive, does the publisher still
exist. If the answer to that question was yes, we
stopped. Note that in many cases where the publisher
exists, the work still might well be out of copyright
and we could go back and look, keep a record of those
works. We were developing a record of publishers that
are -- that are findable.
And then move from publisher to
author, similar set of questions. And then the
question of whether then look for the -- if the book
were for sale that would obviously mean that it wasn't
an orphan.
So there is a nested set of
searches starting with actually is it for sale and then
going to publisher and then looking for information
about authors, and also a mechanism whereby a second
investigator would go through the process without
having information from the first investigator.
BY MR. BaNI:
Q. Dr. Courant, are you aware that the
Authors Guild identified at least one rights holder of

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a book that was on the list that you referred to in
your previous testimony that was considered a potential
OrPhan works?
A. Yes.
Q. OrPhan work, I'm sorry.
A. Considered a potential orphan work, yes.
Q. Right. And do you know whether -- had the
Authors Guild not advised the Hathi Trust of that book,
would Hathi Trust have displayed the full text of that
work?
MR. PETERSEN: Objection. Objection
to form, calls for speculation.
THE WITNESS: Yeah, we will -- it
is -- this is speculative, and the only accurate answer
is we will never know.
BY MR. BONI:
Q. Why is that?
A. Because we had a good long time before the
work was scheduled to be displayed, and many people
other than members of the Authors Guild had access to
that list of works.
Q. Is the Hathi Trust process -- I'm sorry, the
OrPhan Works Project, the process of identifying OrPhan
works wholly dependent on rights holders coming forward
and notifying the project that they are there, that

Page 92

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they exist?
MR. PETERSEN: Objection to form,
vague. Objection, mischaracterizes testimony as to the
process.
BY MR. BaNI:
Q. You can answer.
A. The answer is certainly not. Certainly not.
MR. BaNI: All right. Thank you,
Dr. Courant. I have no further questions.
MS. DURIE: Great, thank you. I
have a few questions for you. Do you want to take a
short break first?
THE WITNESS: I would like that.
MS. DURIE: Great, then we can do
that.
THE VIDEOGRAPHER: We're going off
the record, the time is 4:01 p.m.
(There was a recess taken.)
THE VIDEOGRAPHER: We are back on
the record, the time is 4:12 p.m.
MS. DURIE: Thanks.
EXAMINATION BY MS. DURIE:
Q. Good afternoon, Dr. Courant. I introduced
myself off the record. As you know, I represent Google
in the Authors Guild versus Google litigation. I have

Page 91

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Page 93

1 just a few questions for you, and I will endeavor to be
2 brief.
3
When did you join the faculty of the
4 University of Michigan?
5
A. 1973.
6
Q. Can you just describe for me very briefly
7 your educational background?
8
A. I went to high school in Bayport,
9 Long Island, and then went to college at Swarthmore
10 College, got my BA in history in 1968, and then did a
11 few things for a few years and went to Princeton, got a
12 Ph.D. from Princeton in economics. Actually, the
13 degree was awarded in 1974, shortly after I got here.
14
Q. Can you give me a brief overview of your
15 academic career at the University of Michigan?
16
A. I was hired as an assistant professor in
17 economics and public policy. As I said, I got here in
18 1973. My work in those days was largely on urban
19 economics, housing, housing discrimination and
20 segregation, then moved more broadly into public
21 policy, behavior of governments, taxes at the local and
22 state level and economic development as well, and also
23 federal tax policy and budget policy.
24
I spent a year on the staff of the
25 Council of Economic Advisers in Washington in the late

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'70s doing principally budget policy and health
policy. I came back to Michigan. I've stayed in those
fields, although I've done a fair amount of work on
gender discrimination as well, and then moved into
administrative roles. I became director of what was
then called the Institute of Public Policy Studies, it
might have been 1982, somewhere around there. It's now
the Ford School.
And then after several years in
that role went back to the faculty for a while, then
did that again for a while, was Chair of the Economics
Department and was appointed -- I wrote a good book
about federal budget deficits along the way there,
which is -- which I've turned into public domain, is
available on Google Book Search for free if anybody
wants to read it.
Came to work for the provost then,
Nancy Cantor, in 1998 maybe, '97, '98. She hired me as
vice provost for budget. Did that for several years.
When she left the university, after a brief interim
period I was appointed provost and executive vice
president for academic affairs and served in that role
from 2002 through most of2005.
Back to the faculty. Now in that
period I got interested in libraries and started

Page 96

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that?
A. I thought it was an extremely interesting
and positive development.
Q. Why was that?
A. So really a number of reasons. We had been
digitizing our collections ourselves at the rate of
about 10,000 volumes a year give or take, and at that
rate it was going to take 900 years or so to get the
job done. And in fact, it would have taken longer
because we're still acquiring works.
And so suddenly it became possible
to imagine digitizing close to the whole -- the whole
library, and that provided in tum a number of benefits
that struck me then and strike me now as being very,
very important. One, which is really huge, is this
notion of search that I talked about earlier. Having
the full text available for search of the works in the
library allows people, scholars, students, faculty, to
find works that have subject matter that might not be
apparent until the old card catalogs.
The old catalog would give you three
entries, and if it turned out there was something else
important that was number four, it's not there. But if
it turns out that that 4th or 5th or 6th use has words
that are characteristic, you can find them in the works

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in the library and then come to the library and use
them.
The second enormous advantage has to
do with preservation. Many works in the library,
millions certainly, several millions, were printed on
acid paper, which means that they have within them the
seeds of their own -- their own destruction. It's a
phenomenon you will have noticed. You know, from time
to time you take an old paperback especially or an old
newspaper off the shelf and it just turns into
cornflakes and then dust in your hands. That's what
happens to works on acid paper, and in time it happens
to all of them.
And by -- knowing that there are
millions of such works, identifYing them one by one is
sort of inconceivably difficult. You have to go to the
shelves. J mean it just -- you know, millions or-that's a big number, and, you know, I just can't
imagine the amount of effort that would be involved in
finding them one by one.
If we go through this process of
digitizing essentially the whole collection we then
have a preservation copy of works that would otherwise
disappear without replacement. These works now will in
due course disappear, in due time, but we will be able

Page 95

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writing papers about libraries, and then along the way
had written -- done a fair amount of research on the
economic and policy aspects of higher education, areas
in which I still continue to do some work, and then
was appointed library dean in -- whatever that would
be, 2007.

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1 to construct a replacement from the digital files. So
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that struck me as being, you know, an independence of
two now big uses of the digitized files. The third,
obviously very important, is to be able to make
available to people with print disabilities in a timely

6 way access to these works.
Q. You mentioned earlier in your testimony

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making works available to people with print
disabilities. What does it mean to have a print
disability?
A.

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Page 100
and I'm going to instruct the witness not to divulge

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any attorney/client privileged information. The
General Counsel's office at the University of Michigan
was involved in those discussions, and so again, I
caution the witness to not divulge attorney/client
privileged information.

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THE WITNESS: So the General

8 Counsel's office was indeed involved in most of those

9 or at least many of those discussions, and certainly
10 was involved in the ones that led to the policy choices

I'm no expert in this field, but basically

11 that we made.

it means to have basically bad eyesight, to make it

12 BY MS. DURIE:

such that it is difficult to read text in the form in

13

which it -- difficult or impossible to read text in the

14 that Google and the University of Michigan entered into

Q.

Okay, fair enough. You testified earlier

15 form in which -- I mean one form of print disability is

15 a cooperative agreement; is that right?

16 total blindness.

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Q.

And how is it that you're able to make these

works available to people who do have a difficult time
reading them?
A.

Again, this is not my field of expertise,

but in some cases it's as simple as being able to blow
up the size of a font so that things can be read, or to
work with contrast. In some cases where people's
disability is more serious than that such that they
really can't read at all, there are text-to-voice
Page 99
protocols that allow the work to be rendered in a form

A. That's correct.
17
Q. Did that cooperative agreement provide that
18 the parties would respect copyright laws?
19
A. Pardon me? Say it again?
20
Q. Did the cooperative agreement provide that
21 the parties would respect the copyright laws?
22
MR. PETERSEN: I'm going to object.
23 If you want to show him a copy of the agreement-24
MS. DURIE: Sure.
25
MR. PETERSEN: -- I think that's the
Page 101
I appropriate way to do that, so --

2 where it can be heard, indeed at very high speed for

2

3 people who are trained to hear this way, rather than

3 Let's--

4 read in the usual physical way.

MS. DURIE: I'm happy to do that.

11 this project on authors?

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MR. BONI: Let me just add, Daralyn,
5 I'm straining to hear you.
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MS. DURIE: Sorry.
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MR. BONI: Yeah.
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MS. DURIE: I'll try to keep my
9 voice up, Mike.
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MR. BONI: Thank you.
II
MS. DURIE: And if! can have marked

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12 as the next exhibit a copy ofa document 000005000355

5

Q.

Did you consider the potential impact of

6 this project on authors?
7

MR. BONI: I'm sorry, I didn't hear

8 the question.
9 BY MS. DURIE:
10

Q.
A.

Did you consider the potential impact of
We were -- authors as a group. Of course I

13 am an author. We did, in a -- but in a -- in a sort of

13 through 366. Sorry, Mike, I can't hand you a copy.

14 what impact kind of way. So the impact of these

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15 digitizations on authors, we saw no market effect. We

15 couldn't mark it before.

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spent some time talking about that. And indeed, seems

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MR. PETERSEN: This is 3?

likely to me, although by no means a sure thing, so

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MS. DURIE: Yeah.

MR. BONI: I have it. I just

this is speculation, and it was speculation at the

18

DEPOSITION EXHIBIT 3

time, that the search capability would lead to some

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Cooperative Agreement

works that were otherwise never gonna be found being

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WAS MARKED BY THE REPORTER

found and market might appear for them, who knows.

21

FOR IDENTIFICATION

Q. You said that you did have discussions
regarding potential market effects. What did you
discuss in that regard?
MR. PETERSEN: I'm going to object

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12
Q. That's fine. You can set that aside. That
13 was my only question -14
A. Okay.
15
Q. -- with respect to that document. Can you
16 give me a sense, Dr. Courant of the size of the
17 University of Michigan collection?
18
A. Oddly enough, that is not as simple as you
19 would think. For one thing, the University of
20 Michigan's agreement for digitization involves several
21 libraries in the university that I'm not responsible
22 for. The law school library, the business school
23 library, which is called the Kellogg -- no, yeah,
24 the -- is that right? The business school library,
25 yeah, the Michigan historical collection, which is the

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to form on that as well.
THE WITNESS: The works range from
the -- there's some bound volumes, which was the
purview of the agreement, range from the very beginning
of publishing to the present day and all manners of
subject matters. I often say that we hold the
scholarly and cultural record, so if you could construe
it as part of the scholarly or cultural record, we are
likely to have significant numbers of works in it, also
reference. So a very -- it's a very diverse, very
broad collection of works.
BY MS. DURIE:
Q. You testified earlier that the University of
Michigan had used digital copies that it had
obtained of works in this collection to create its own
searchable index; is that right?
MR. PETERSEN: Objection to form.
MR. BONI: I'm sorry, I couldn't
hear the tail end of that question.
MS. DURIE: Sorry. To create its
own searchable index.
THE WITNESS: Not as such. Although
those works were searchable, the number is so small
that having an index of a tiny fraction of a collection
is uninteresting.

Page 103

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Bentley Library, and a special collections library
called the Clements Library, are all contemplated by
the project and the agreement but are not part of the
University of Michigan Library System.
That said, the University Library
System holds approximately -- oh, and I should also
mention the University of Michigan at Flint and the
University of Michigan at Dearborn are also
contemplated in the agreement and are not part of the
University of Michigan Library System. The University
of Michigan Libraries, the part that I'm dean of, has
approximately 8 million volumes in it.
Q. Can you give me a sense of, and I realize
this is a very broad question, but the types of works
that are encompassed within those 8 million volumes?
MR. BONI: Object to form.
THE WITNESS: Lots of works of
many types. So without knowing what you mean by
types-BY MS. DURIE:
Q. I just want to get a sense of what kinds of
works are in there, what is the age range of these
works, what are the kinds of topics that they embrace,
what is the diversity within this collection?
MR. PETERSEN: I'm going to object

Page 105

1 BY MS. DURIE:
2
Q. I'm sorry, I apologize. Is it correct that
3 the University of Michigan has used copies of-4 digital copies of books that were scanned by Google to
5 create a searchable index?
6
A. As part of this project?
Q. Yes.
7
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A. Yes.
Q. And what was the reason for doing that?
9
lOA. I think I described it earlier, that it
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
IS access to works that they otherwise would not be able
16 to read. Has the University of Michigan made any
17 actual displays of works in its collection of any of
18 the works as part of the search -- strike that. That
19 was terrible question.
20
In connection with this
21 searchable index, does the University of Michigan allow
22 users to read works that are returned from that
23 searchable index if those works are deemed to be in
24 copyright?
25
MR. PETERSEN: So we're off the

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Page 106

1 subject of students with print disabilities?
MS. DURIE: Correct.
2
3
MR. PETERSEN: This is a

4 different -- okay.
5
THE WITNESS: In cases where the
6 rights holder has authorized it, yes.
7 BY MS. DURIE:
8
Q. 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?
13
MR. PETERSEN: And you're excluding
14 students with print disabilities?
15 BY MS. DURIE:
Q. Excluding students with print disabilities.
16
A. If the works are either in copyright or not
17
18 known to be not in copyright, no.
19
Q. Has the University of Michigan -20
A. Did I get that grammar right?
Q. Yeah.
21
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A. I believe so.
Q. Yes. Has the University of Michigan put
23
24 security measures in place to protect all ofthe
25 various digital copies that exist of these works?

1 entity?
A. Approximately 20 -- a little bit under
2
3 20 million dollars a year.
4
Q. Has that budget been affected in any way by
5 the Google Library Project? In other words, has that,
6 for example, caused your budget to go down?
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MR. PETERSEN: When you say budget,
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for acquisitions?
BY MS. DURIE:
Q. For acquisitions, acquisitions.
A. Certainly not in any direct way. Indirectly
the Google Library Project has enhanced the reputation
of the library, therefore possibly improved our
political ability to get resources from the provost.
Q. Okay. But it is not then the case I take it
that the fact that you have digital copies of the works

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in your collection has itself caused you to start
spending less money on book acquisition?
A. No.
Q. Have there ever been circumstances where the
University of Michigan has bought additional paper
copies of books that it has in digital form as a result
of its participation in the Google Library Project?
A. So we have a dangling modifier here. So we
have it in digital form as a result of the Google
Page 109

Page 107

1
A. Again, we're talking about this set of works
2 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?
A. Yes.
12
13
Q. Is that budget broken down in some fashion
14 departmentally or-IS
A. It's -- so actually I should back up. The
16 University of Michigan Library has such a budget.
17 Several other libraries have budgets. Departmental
18 libraries have budgets. So there are probably dozens
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
Q. With respect to the entity of which you are
25 the dean, what is the acquisition budget for that

1 project.
Q. Correct.
2
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A. Stop. And have we as a result of that, of

4 having it not -- have we bought -5
Q. Let me ask the question again.
6
A. Okay.
7
Q. I want to direct your attention to those
8 books where you have a digital copy as a result of the
9 Google Library Project. Have there been circumstances
10 where the University of Michigan has nonetheless gone
11 out and bought additional paper copies of those books
12 for the library?
13
A. So I can say certainly, but I don't have
14 specific knowledge of such cases. But knowing our
15 practices, we would not take into account that we had a
16 digital copy of an in copyright work, and we buy stuff
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all the time.
Q. Okay. So having a digital copy of an in
copyright work has not affected your purchasing
decisions?
A. That's correct.
MR. BONI: Object to form.
BY MS. DURIE:
Q. Have there been circumstances, again
referring your attention to this category of books that

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are in copyright where you have a digital copy -A. That are not known not to be in copyright?
Q. That are not known -- fair enough. That's
a very good correction. Let me start again. Have
there been circumstances where with respect to books
that are not known not to be in copyright and for
which you have a digital copy that the University of
Michigan has paid publishers for digital full view
access to those books?
A. Again, certainly, although I can't cite
specific instances.
Q. Okay. Would having the digital copy have
impacted that purchasing decision?
A. No. Actually, I can site specific I mean.
So in the scientific journal and e-book, scientific
e-books area where we digitized, we also continue to
license those same works frequently.
Q. Okay. Has the University of Michigan ever
paid money simply for the right to include a work in a
searchable index as opposed to the ability to view or
display the full text of that work?
MR. BONI: Object to form.
THE WITNESS: So I'm just -- I need
a little help with the activity that you contemplate
here.

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BY MS. DURIE:
Q. SO in a situation in which the University of
Michigan is creating an index of books in its
collection, has the University of Michigan ever paid a
rights holders simply for permission to include their
book as an entry in the search results as opposed to
paying the rights holder for permission to be able to
read the book?
MR. PETERSEN: I'm going to object
to form, but the witness can certainly answer to the
extent he understands the question.
MR. BONI: Right.
THE WITNESS: So if you're asking if
we paid for the right to use a full text, no, no. I
think the answer to your question is no.
BYMS. DURIE:
Q. Okay. Let me make sure we're clear. So
have there been situations where the -- the University
of Michigan has created indices of works in its
collection; is that right?
A. So indices of the contents of works so -- is
what you're talking about?
Q. Well, let me just start with indices of
works in its collection.
MR. PETERSEN: Do you mean in

Page 112

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connection with search functionality?
BY MS. DURIE:
Q. Any. Just in general. Presumably yes,
right?
A. Yes.
Q. Okay. And has the University of Michigan
ever paid a rights holder for permission to include a
work simply in that index?
A. Not to my knowledge.
Q. Okay. Now let me take indices that
encompass the full text ofthe work. Has the
University of Michigan ever paid a rights holder for
permission to have that rights holder's work included
in the index where it was an index of the full text of
works?
A. Again -MR. BONI: Object to form.
THE WITNESS: I had no knowledge of
such circumstances.
BY MS. DURIE:
Q. Okay.
A. So no, as far as I know.
Q. Now, you also mentioned earlier in your
testimony the importance of being able to maintain
duplicate copies of works as part of a digital archive;

Page III

Page 113

1 is that correct?
2
A. I'm not quite sure what you're referring to.
Q. You mentioned the importance of being able
3
4 to keep works for posterity -5
A. Yes.
Q. -- is that right?
6
7
A. Urn-hum.
8
Q. How is it that the library project has
9 enabled Michigan to do that?
lOA. The library project has led to our
11 possession of digital files of many millions of our
12 works, and so those files are available. They exist
13 and are available as a record of the contents of those
14 works should the works deteriorate, disappear, have
15 other things happen to them.
16
Q. Okay. Has the University of Michigan ever
17 paid rights holders money for the inclusion of works
18 purely in an archive, a duplicate copy of a work for
19 purely archival purposes?
20
A. Specifically actually here, if! may, a dark
21 archive?
22
Q. Correct, where the works are not being
23 accessed for any purpose, but -24
A. Not to my knowledge.
25
Q. Okay.

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Page 114

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A. No, no, we haven't, okay.
Q. You also mentioned earlier in your testimony
the Orphan Works Project. What was the rationale for
undertaking the Orphan Works Project?
MR. BONI: Object to form. Whose
rationale, Daralyn?
BY MS. DURIE:
Q. Were you involved in early discussions
regarding the desirability of embarking on the Orphan
Works Project?
A. Yes.
Q. What was your understanding of the
University of Michigan's rationale for embarking on
that project?
A. The project arose out of the decision by
Judge Chin to -- not to approve the amended settlement
agreement. And under that agreement, the -- many
orphan works would have been made readable, usable as
part of the product that Google and the Authors Guild
and the publishers agreed to.
And so we asked ourselves following
that, is there some way that we could get orphan works,
which would of course by definition, if they were well
established, their orphanage was -- orphan-ness was
well established, not to have any consequence for a

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rights holder, was there any way we could make digital
uses of those works, which was something that there was
a great interest in on the campus, because actually
digital works are much easier to get at and use than
print works for many purposes. So that was the genesis
of the idea.
Q. You said that digital copies are easier to
use in some cases than print copies. Why is that?
A. Well, there's lot of things you can do with
them that you can't do with print copies. One of them
is read them at distance. One of them, again, if you
can combine searching and reading, which you can for
works in the public domain, you can look at the way in
which phrases were used on a given subject over
different periods of time and do a kind of scholarship
and study that really is much more difficult to do
using only print volumes.
MS. DURIE: Okay. Thanks very much.
I don't have any further questions.
MR. BONI: I just have a few
follow-up questions. I will not be long. We can break
or not. I'm ready to go now if you want.
MS. DURIE: There's three minutes on
the tape, Mike, so as long as you can get done then, I
think we can keep going.

Page 116

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MR. BONI: All right. Let's try.
REEXAMINATION BY MR. BONI:
Q. Dr. Courant, you testified just now that
University of Michigan has not paid any rights holder
for books that were stored in a dark archive. My
question is whether any rights holders have been paid
for books in any other kind of archive at the
University of Michigan?
MR. PETERSEN: Objection to form,
vague.
THE WITNESS: We have about
8 million books in the library, and we paid for pretty
much every one of them.
BY MR. BONI:
Q. Got it. So my question is, you drew a
distinction in your response between dark archive and
other -- any other type of archive as the question was
presented, and my question is, did the University of
Michigan ever pay a rights holder for a book purely for
storage for archival purposes?
A. So in a light archive it just isn't purely
for storage. It's automatically by definition of light
readable, and we certainly have paid rights holders on
millions of occasions for reading access to works,
including reading access to digital works.

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Q. Is there any other type of archive other
than one that has books available for reading in a dark
archive?
MR. PETERSEN: Objection to form.
THE WITNESS: There -- one could
hold an archive of -- usually -- usually there are not
other archives of published works, of printed works,
although one could imagine very rare books being held
in a way that would be principally archival,
principally to take care of them and only rarely,
rarely for use.
BY MR. BONI:
Q. Were you -- Dr. Courant, were you personally
in favor of the amended settlement in the Google Books
case?
A. Yes.
Q. Do you know whether -A. Generally.
Q. Generally. Do you know whether that view
was held by your colleagues at the University of
Michigan?
MR. PETERSEN: Objection, calls for
speculation.
THE WITNESS: It was surely held by
some of them and surely not held by others.

Page 115

Page 117

30 (Pages 114 - 117)
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Page 120

1

CERTIFICATE OF NOTARY

2 STATE OF MICHIGAN )
3

) SS

4 COUNTY OF OAKLAND
5

I, Jennifer L. Ward, Certified Shorthand Reporter,

6 a Notary Public in and for the above county and state,
7 do hereby certify that the above deposition was taken

8 before me at the time and place hereinbefore set forth;
9 that the witness was by me first duly sworn to testify
10 to the truth, and nothing but the truth, that the
11 foregoing questions asked and answers made by the
12 witness were duly recorded by me stenographically and
13 reduced to computer transcription; that this is a true,
14 full and correct transcript of my stenographic notes so
15 taken; and that I am not related to, nor of counsel to
16 either party nor interested in the event of this cause.
MR. PETERSEN: The videotape is up,

17

19

17
18

18 Mike.

19

MR. BONI: All right. That's all I

20

20 have.

Jennifer L. Ward, CSR-3717

21

MS. DURIE: Perfect.

21

Notary Public,

22

THE VIDEOGRAPHER: This concludes

22

Oakland County, Michigan

23 the deposition, the time is 4:46 p.m.
24
(The deposition was concluded

23

25

25

24 My Commission expires: 10-27-2013

at 4:46 p.m.)
Page 119

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3
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7

CERTIFICATE OF DEPONENT
I, PAUL N. COURANT, Ph.D., do hereby certify
that I have read the foregoing transcript of my
testimony, and further certify that it is a true
and accurate record of my testimony (with the
exception of the corrections listed below):
Page Line
Correction

8 _L-LI______' -_ _ _ __
9 _L-LI______' -_ _ _ __
10 _L-LI______'-_ _ _ __
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12 _L-LI______' -_ _ _ __
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I
LI_ _ _ _ _ _ _ _ _ __
18 _L-LI______ ' -_ _ _ __
19 _L-LI______ '-_ _ _ __
20
21
PAUL N. COURANT, Ph.D.
22
SUBSCRIBED AND SWORN TO BEFORE ME
DAY OF _ _ _ _ ,20
.
23 THIS
24
25 (NOTARY PUBLIC)

MY COMMISSION EXPIRES:

31 (Pages 118 - 120)
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Filed 08/03/12 Page 33 of 36

Page 119
(part 1)

1

CERTIFICATE OF DEPONENT

2

I,

PAUL N.

COURANT,

Ph.D.,

do hereby oertify

3

that

have read the foregoing transoript of my

4

testimonYr

5

and aoourate reoord of my testimony

6

exoeption of the oorreotions listed below)

7

Page

8

8

22-23 I

university librarian I

9

11

2

the librarian

10

12

16

university librarian I University Librarian

11

21

12

29

14

13

36

10

digit

14

47

11

engram

15

53

21

Michigan libraries

Michigan Library's

16

61

9
---

joint Answer and

Joint Answer and

17

62

I

-5 - -

before I read it.

before.

18

71

I

orphan works

orphan work

19

73

I

and further oertify that i t is a

Line

(with the

Correotion
University Librarian
the University Librarian

25
_3~_

add

at

limited time basis

-7 -

true

limited basis
digital
Ngram

I read it.

et cetera

etcetera

(continued on next page)

20
21

PAUL N.

COURANT,

Ph.D.

22
SUBSCRIBED AND SWORN TO BEFORE ME
23

THIS

DAY OF

20

24

25

(NOTARY PUBLIC)

212-279-9424

MY COMMISSION EXPIRES:

VERITEXT REPORTING COMPANY
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212-490-3430

A-747
Case 1:05-cv-08136-DC Document 1053-5

Filed 08/03/12 Page 34 of 36

Page 119
(part 2)

(continued from previous page)
CERTIFICATE OF DEPONENT

1

2

I,

PAUL N.

COURANT,

Ph.D.,

do hereby certify

3

that I

4

testimony,

5

and accurate record of my testimony

6

exception of the corrections listed below)

7

Page

have read the foregoing transcript of my
and further certify that i t is a true
(with the

Correction

Line

8

96

20

apparent until the

apparent under the

9

98

2

an inde2endence of

an instance of

10
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109

I

117
--I

16
2

an in copyright work

an in-copyright work

I for reading in a dark I for reading and a dark

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16

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21
PAUL N.

COURANT,

Ph.D.

22
SUBSCRIBED AND SWORN TO BEFORE ME

23
24

25

THIS

2ZY\ct

DAY OF

~iUNl ~j UQA~llL(NOTARY PUBLIC)

C&1'lL-

,

DENISE M. TRUES[ ELL
NOTARY PUBLIC - STATE OF ~ ICHIGAN
COUNTY OF WASHTEN .W
My Commission Expires Decem er 1. 2015
Acting in the County of Was tanew

20~.

-~~
MY COMMISSION EXPIRES:

VERITEXT REPORTING COMPANY
212-279-9424

www_veritexLcom

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A-748
Case 1:05-cv-08136-DC Document 1053-5

Filed 08/03/12 Page 35 of 36

EXHIBIT 34
FILED UNDER SEAL

A-749
Case 1:05-cv-08136-DC Document 1053-5

Filed 08/03/12 Page 36 of 36

EXHIBIT 35
FILED UNDER SEAL

A-750
Case 1:05-cv-08136-DC Document 1053-6

EXHIBIT 36

Filed 08/03/12 Page 1 of 66