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]

A-751
Case 1:05-cv-08136-DC Document 1053-6

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF NEW YORK

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THE AUTHORS GUILD, et al.,

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Plaintiffs,

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Master File No.
05 CV 8136-DC

vs-

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GOOGLE, INC.,

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Defendant.

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/

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DEPOSITION OF GLORIANA ST. CLAIR,

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taken at Carnegie Mellon University, 4909 Frew

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Street, Pittsburgh, PA 15213, commencing at

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10:00 a.m., Thursday, May 31, 2012,

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before Gloria Donavich, RPR, CRR.

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I APPEARANCES:
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Joanne Zack, Esq.
Boni & Zack, LLC
15 St. Asaphs Road
Bala Cynwyd, Pennsylvania 19004
[phone]
[e-mail]
Appearing on behalf of Plaintiffs, via
Speakerphone

GLORIANA ST. CLAIR,
having been duly sworn,
was examined and testified as follows:

---EXAMINATION

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- --7 BY MS. ZACK:
8 Q. Good morning, Ms. St. Clair. What do you
prefer to be called? "Doctor"?
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10 A. "Dean, II
11 Q. "Dean"? Did you say "dean"?
12 A. I did.
13 Q. Just one instruction. If you can't hear me,
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please let me know since we're not in the same
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room, and I'll do the same for you. Also, if
you don't understand my question, I'll
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rephrase it.
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Could you state your full name for
the record, please.
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20 A. My name is Gloriana St. Clair.
21 Q. Uh-huh. And where are you currently employed?
22 A. At Carnegie Mellon University.
23 Q. You're the dean of the university libraries.
Is that correct?
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25 A. Yes.

David McGowan, Esq.
Genevieve Rosloff, Esq.
Durie Tangri
217 Leidesdorff Street
San Francisco, California 94111
[phone]
[e-mail]
Appearing on behalf of Defendant Google
Also present:
DF Ryan, CMU

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EXAMINATION INDEX
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3 GLORIANA ST. CLAIR
BYMS.ZACK
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EXHIBIT INDEX
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9 PLAINTIFF'S EXHIBIT
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10 Exhibit 87 Report
11 Exhibit 88 Denise Troll Covey Article 60
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And you've held that position since April,
1998?
Correct.
You've been retained by Google as an expert in
this matter?
Yes.
Approximately when were you retained?
A couple of months ago.
And what do you consider to be your area of
expertise?
The running oflibraries and the research
around copyright clearance.
Are you trained in any way as a lawyer?
No.
Do you have a legal staff that's assigned to
you as dean of the university libraries?
Yes.
And who is that?
Variously; Mary Jo Dively is the university
counsel. I often work with Jim Mercolini who
is our human resources specialist lawyer.
I've worked in the past with Mary Beth Shaw
and one other attorney employed by the
University.
And is any of those persons particularly

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assigned to work with you on copyright
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clearance matters?
3 A. I don't remember which of those people helped
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us with copyright clearance.
5 Q. In connection with preparing your report in
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this matter, did you speak to anyone from
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Google?
8 A. No.
9 Q. Did you speak to any of the other experts
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retained by Google in this matter?
11 A. No.
12 Q. Did you receive assistance from anyone else in
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preparing the report?
14 A. From some members of my staff and from the
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attorneys at Durie Tangri.
16 Q. Which members of your staff?
17 A. My assistant Dan Ryan, my scholarly
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communications librarian Denise Troll Covey,
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and my associate dean Erika Linke.
20 Q. What type of assistance did you receive from
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those people?
22 A. From all of them just a variety of assistance
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in discussing the issues in doing the research
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for the report.
25 Q. Who wrote the report?

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1 Q. Did you use any of these materials in your
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report?
3 A. Yes.
4 Q. And in a case where you used the materials,
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did you cite them?
6 A. Yes.
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MR. INGBER: Objection. Vague with
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respect to use, but you may answer.
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THE WITNESS: Yes.
10 BY MS. ZACK:
II Q. SO just to be ciear, the list of materials
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considered includes the Fourth Amended Class
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Action Complaint. Did you use that document
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in your report?
15 A. Yes.
16 Q. And in what way?
17 A. Well, I read it and I thought about it and
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talked about it with my team here at Carnegie
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Mellon.
20 Q. Is that true of each item that's listed here?
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MR. McGOWAN: Objection. Compound.
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You may answer.
23 BY MS. ZACK:
24 Q. You can answer separately. There are fifteen
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items listed. Would your answer be the same

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1 A. I did with the help of my attorneys at Durie
Tangri.
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3 Q. Have you served as an expert before in any
cases?
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5 A. No.
6 Q. Never?
7A. No.
8 Q. Have you ever testified before?
9A. No.
10 Q. Your report at Exhibit B listed some material
that you considered. Do you have that in
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front of you? Perhaps we should mark your
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report as -13
I'm going to mark it as Plaintiffs'
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Exhibit 87, please.
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MR. McGOWAN: 87, Joanne?
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MS. ZACK: Yes.
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(Plaintiffs' Exhibit No. 87 marked for
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identification. )
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23 Q. At least in my version the last page is a list
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of materials considered
25 A. Yes.

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for each of those items or would it be
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different?
3 A. It would be different.
4 Q. Okay. Are there any items that you did not
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read?
6 A. No.
7 Q. Are there any that you did not consider in
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connection with your report?
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MR. McGOWAN: Objection. Vague.
l O You may answer.
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THE WITNESS: No.
12 BY MS. ZACK:
13 Q. Are there any that you did not discuss with
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others?
15 A. Yes.
16 Q. Which ones would those be?
17 A. Perle.
18 Q. Mr. Perle; he pronounces it "Perle,"
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P-E-R-L-E?
20 A. Yes.
21 Q. Anything else?
22 A. Jaskiewicz I didn't discuss with Carnegie
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Mellon people. Aiken I only discussed with
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Dan and Denise Troll Covey and Dave and Jenny,
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and the same for Courant.

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Have you ever met Mr. Courant?
Yes.
In what connection?
The University of Michigan and the Carnegie
Mellon University libraries were both members
of the Digital Library Federation.
How long have you known him?
I'm not certain.
Have you ever discussed with Mr. Courant the
matters discussed in this lawsuit?
No.
Have you discussed with him the Google Books?
No.
Or the Google Library project?
No.
Anything about Google -No.
-- with Mr. Courant?
MR. McGOWAN: I'll just caution Dean
St. Clair to make sure that Mrs. Zack is
finished with her question because especially
in this setup we don't want you to speak over
each other.
I think the record is clear on that.
MS. ZACK: Yes. Thank you.

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And did they ask you for those?
MR. McGOWAN: I'm going to insert a
caution because I think that the agreement as
I understand it in this case under Rule 26 is
that communications are treated as work
product. I don't mind at a high level of
generality; I just ask that we be mindful of
that.
MS. ZACK: Yeah. I'm just trying to
establish a foundation, because Dean St. Clair
doesn't appear to know what I'm asking about
at this point.
MR. McGOWAN: I disagree with that,
but, as I say-BY MS. ZACK:
Q. Are you familiar with the documents that I'm
talking to you about, Dean St. Clair?
A. No.
Q. All right. You provided some documents to
Google. Correct?
A. Yes.
Q. Okay. What type of documents did you provide
to Google?
A. A wide variety of documents.
Q. And can you describe what they were as the

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1 BY MS. ZACK:

2 Q. You also produced some documents that are
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E-mails and some other materials. Do you know
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what I'm referring to?
5 A. No.
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MS. ZACK: Dave, do you know what
I'm referring to?
MR. McGOWAN: Yeah. It might help
if you identified specifically what you're
referring to.
BY MS. ZACK:
Q. Well, there were a number of documents
produced by Google to us as plaintiffs that
were represented to be your materials, and
they consist of some E-mails and other matters
relating or appearing to relate to the Million
Book Project.
Did you produce documents to Google?
A. Yes.
Q. What type of documents did you produce to
Google?
A. I don't understand "to Google."
Q. Did you provide some of your E-mails or other
internal documents to Google attorneys?
A. Yes.

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variety?
Articles, E-mails, National Science Foundation
reports.
Did you produce to Google all of the E-mails
that you generated or received in connection
with the Million Book Project?
No.
Did you produce some subset of those E-mails?
Yes.
What particular subset did you produce?
We made several points in the report about our
work in the Million Book Project, and I
produced documents that I thought would make
appropriate footnotes.
So it would be fair to say that you have many
more documents concerning the Million Book
Project that were not produced to Google. Is
that correct?
Yes.
Do you know approximately how many documents
you have that relate to the Million Book
Project in total?
A couple of filing cabinet drawers' worth.
And do others in your organization have
additional documents?

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Yes.
Did you produce documents from anyone else's
files other than your own?
Yes.
Who else's files?
Denise Troll Covey's files.
Anyone else?
I don't think so.
Did you produce all of her documents or again
a subset?
No, a subset.
And that was to illustrate points in your
report?
Yes.
Referring you now to your report -Before I do that, let me ask you a
different question. Have you other than
speaking to Google's attorneys about this
particular report, have you communicated in
the past with Google or personnel from Google
on any other matters?
Yes.
And what matters?
The -Well, of course, you know there are

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Yes.
What year was that?
I don't know.
Any other connections or communications with
Google?
Nothing memorable.
Did you ever have any discussions with or
communications of any kind with anyone from
Google concerning the Google Books?
I need to amend.
Uh-huh.
I just recalled that Dan Clancy was on campus,
and Raj Reddy, Mike Shamos, Jaime Carbonell
and I had lunch with him and discussed with
him over several months the possibility of
putting the Million Book Project's books into
Google Books because the U.S. partners of the
Million Book Project believe that Google Books
is the best destiny for our corpus.
And at what time period did those discussions
take place, what year?
I think about four years ago.
That would be 2007, 2008?
I can call somebody at the break if you need
something more definite.
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many Carnegie Mellon faculty members who do
research for Google. Google has a research
facility here at Carnegie Mellon, and most
particularly one of our alums is the head of
Google Scholar, and he visited here perhaps a
year, year and a half ago, and we had a very
robust and enlightening conversation about
Google Scholar.
And what is that person's name?
Ahurag Acharya.
Can you speJl that?
No.
Ahurag --- Acharya.
Can you do some phonetics on that? I'm on the
phone. It's very hard for me to pick it up.
I think the last name is A-C-H-Y-A, but on the
break we could look it up.
A-C-H-Y-A? Okay. Thank you.
Any other communications with
personnel from Google other than Mr. Acharya?
I was on the commencement platform when Eric
Schmidt got his honorary doctorate, but I
don't believe that I spoke with him.
That was at Carnegie Mellon?

Okay. Thank you.
MR. McGOWAN: You should provide
your best recollection. It's not a research
project.
BY MS. ZACK:
Q. You're saying it was approximately four years
ago. Right?
A. Yes.
Q. Do you recall if it was before or after the
Google Book settlement was announced?
A. Before.
Q. You said those discussions occurred over
several months?
A. Yes.
Q. And how many is "several"?
A. I think we carried on that conversation for
maybe seven or eight months.
Q. All right. And that was with -- among -- the
conversation you said was among yourself, Dan
Clancy, Raj Reddy, and who were the others?
I'm sorry.
A. Michael Shamos and Jaime Carbonell.
Q. Okay.
A. Raj Reddy and Dan Clancy were the primaries.
Q. What was the ultimate decision the Million
Q.

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Book Project reached as to that, whether or
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not to join -- or provide your corpus to
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Google?
4 A. The American directors of the Universal
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Library Project wanted to do that. The
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Chinese partners said they would think about
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it, and the Indian partners were skeptical.
8 Q. Yes. And that was the end of the discussion?
9 A. Yes.
10 Q. Did Carnegie Mellon ever consider-II
Let me withdraw that. Did Carnegie
Mellon University ever become a library
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partner with Google?
14 A. No.
15 Q. Did you ever discuss that with Google?
16 A. No.
17 Q. Google never approached you to become a
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library partner?
19 A. Correct.
20 Q. And you didn't approach them to become a
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library partner?
22 A. No.
23 Q. Did you discuss it internally at Carnegie
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Mellon?
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MR. McGOWAN: Objection. Vague.

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Any other copyrights?
Uh-huh.
That I own?
Q. Yes.
A. Yes. I've written over a hundred articles.
Q. And are they all available on the Web?
A. No.
Q. Are some available on the Web?
A. Yes.
Q. Approximately how many?
A. Thirty.
Q. Is there some reason the rest are not?
A. I haven't done the work necessary to clear
with the publishers.
Q. Okay, now turning to your report, please -MR. McGOWAN: Is there a page,
Joanne?
MS. ZACK: Sure; Page 1, please.
MR. McGOWAN: We have it.
MS. ZACK: Thank you.
BY MS. ZACK:
Q. Under Summary of Opinions which is near the
bottom of Page 1 -A. Yes.
Q. -- Paragraph 5, there's a lead-in that says in

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You may answer.
2 BY MS. ZACK:
3 Q. Did you discuss internally at Carnegie Mellon
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the possibility of becoming a library partner
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with Google?
6 A. No.
7 Q. Did you ever personally consider that option?
8A. I don't know.
9 Q. When you say you don't recall, do you mean you
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don't recall or -11 A. I mean, we had our own project. We wanted to
join our project with the Google project, and
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we were working on that with Dan Clancy.
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14 Q. And after that failed to come to fruition, you
don't recall whether you considered having
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Carnegie Mellon become a library partner with
Google separately?
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18 A. It was my impression that partners were
invited, that they didn't volunteer.
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20 Q. Do you personally own any copyrights?
21 A. Yes.
22 Q. Are they in books?
23 A. I have one book which I have on the Web under
a creative comments license.
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25 Q. Okay. Anything else?

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brief my opinions are, and then there are A,
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B, C, D, four subparagraphs.
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Do you see that?
4A. I do.
5 Q. All right. The first subparagraph, A, says in
thinking about digitization of books , it is
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critical to distinguish between digitization
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to facilitate search to find a book and
digitization for the purpose of displaying the
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whole text of a book.
Has Carnegie Mellon at Carnegie
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Mellon libraries digitized books to facilitate
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search?
14 A. No.
15 Q. Was that ever done in the Million Book
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Project?
17 A. Yes.
18 Q. Okay.
19 A. Let me amend. We have digitized books to
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facilitate search.
21 Q. "We" being -22 A. Carnegie Mellon University libraries.
23 Q. And what books have you digitized to
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facilitate search?
25 A. Most obviously the Posner collection.

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Anything else?
Well, we've digitized two million pages of
archival content, some of which is books, and
we did that to provide access to them and, of
course, search, for instance, the books and
papers of Herbert Simon, our Nobel laureate -one of our Nobel laureates.
Was that in connection with-In connection with what endeavor was
that done?
When Senator Heinz died in the airplane crash,
the Heinz family asked Carnegie Mellon
University to digitize his papers and bring
them to the Web so that they could be used by
as many people as possible.
And the Heinz family asked Carnegie Mellon to
digitize Senator Heinz' papers?
Correct.
And did Carnegie Mellon do that?
Yes.
And that was at the request ofthe family?
Yes.
And with respect to Herbert Simon, is that the
same or a different initiative?
It was at Herbert Simon's request.

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So again that was with permission of
Mr. Simon?
Dr. Simon.
Dr. Simon. Excuse me.
Yes.
And when the Posner collection was digitized
by Carnegie Mellon, isn't it correct that
Carnegie Mellon did not digitize any
in-copyright books unless it had permission?
Precisely we did not open for access any books
for which we did not have permission, any
books that were in copyright for which we did
not have permission.
My question is did you digitize any books in
copyright without permission?
No.
Not even for search?
Well, okay, to be precise, we digitized all
the books that we could digitize without doing
them physical harm.
We opened to the Web only those
books which were either out of copyright or
for which we had permission.
I'm not certain whether you can
search books that we digitized but didn't

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open.
When you say "open," what do you mean?
Open to the Web, make accessible on the Web.
Let's take it a step at a time. At a certain
point Carnegie Mellon made a decision to
attempt to digitize the Posner collection.
Correct?
Yes.
And this was before the Million Book Project.
Right?
No.
What were the time frames? When was the
decision made by Carnegie Mellon to attempt to
just digitize the Posner collection?
About ten years ago.
And what when was the Million Book Project
begun?
About fourteen years ago.
And in connection with the Posner collection,
is it correct the collection included
materials that were out of copyright as well
as materials that were in copyright?
Yes.
My question is did Carnegie Mellon digitize
the in-copyright books before it received any

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permissions.
Both of those projects, the digitization of
the books and the searching for -- seeking
copyright permission were lengthy and
ongoing.
Yes, but as a matter of actual practice, did
Carnegie Mellon digitize any books in the
Posner collection that were in copyright
before it had received a permission?
I'm not sure.
Part of the work that Carnegie Mellon did in
connection with the Posner collection
digitization effort was work to attain
permissions for in-copyright books. Right?
Yes.
So you're not sure of the sequence as to
whether or not Carnegie Mellon ever digitized
an in-copyright work before it had a
permission to do so?
Correct.
Who would know that at Carnegie Mellon?
I'm not certain we kept records at that
detail, and I'm not certain whether the
machines recorded -Weare using a home-grown system.

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Page 28

A home-grown system of -I
you said, about ten years ago?
To store the copies of all of our digital
2 A. Yes.
content and to allow search engines to search.
3 Q. And again the Million Book Project was about
When you say a "home-grown system," you're
4
fourteen years ago, and that was about the
talking about the actual system that houses
5
time you joined Carnegie Mellon?
the copies?
6 A. Yes.
Yes.
7 Q. And those were fairly significant digitization
And that's on servers?
8
efforts, wouldn't you agree?
Yes.
9
MR. McGOWAN: Objection. Vague.
10
You may answer.
Do you also keep backup copies?
Yes.
11
THE WITNESS: Yes.
Who actually creates the copies?
12 BYMS. ZACK:
Our library information technology staff.
13 Q. Were you aware of any other libraries that
Who's in charge of the home-grown system at 14
were engaged in any digitization efforts at
15
that time in the early part of this
Carnegie Mellon that stores the digital
copies?
16
millennium?
Melanie Myers.
17 A. Yes.
What's her position?
18 Q. What other libraries?
She's the head of library information
19 A. Other members of the Digital Library
technology.
20
Federation.
Are the books from the Posner collection that 21 Q. Which ones in particular?
have been digitized stored on that home-grown 22 A. Michigan, Penn State, Cornell, Harvard,
system?
23
Berkeley, New York Public, Tennessee -Yes.
24 Q. That's all you can recall?
And are the books from the Million Book
I 25 A.
Perhaps Texas, Virginia, Princeton, Yale,
Page 29

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Project that have been digitized stored
there?
A. No.
Q. Aside from the Posner collection, what other
books are stored on the home-grown system
you're referring to?
MR. McGOWAN: Objection. Lacks
foundation.
You may answer.
THE WITNESS: Are you just
interested in books, or are you interested in
a broader range of materials?
BY MS. ZACK:
Q. Well, let's just stay with books.
A. I'm thinking.
Well, the archival collections of
Dr. Simon and Dr. Newell, Dr. Traub, have
books in them, so those are there.
I think we have scanned some costume
books with permission or out of copyright and
they're there, but our main book collection
that we're hosting ourselves is the Posner
collection.
Q. Okay. So Carnegie Mellon began its efforts to
digitize the Posner collection in about 2002,

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Oxford, National Archives, Library of
Congress, University of Pennsylvania.
So each of those institutions was involved in
some digitization efforts in 2000 or
thereabouts or shortly after that?
Yes.
And the last sentence of Paragraph 5 A which
is on the top of Page 2 -Yes.
-- it says no large-scale digitization
projects were under way in the u.s.
Yes.
And you're talking about 2004?
Yes.
But in 2004 the Million Book Project was under
way. Correct?
Correct.
And that was a large-scale digitization
project, was it not?
Yes, but not in the U.S.
Weren't you digitizing books present in the
U.S.?
No.
SO you're talking about the physical location
of the books?

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Q.

And of the digitization.
Well, when the books were digitized in the
Million Book Project, were they available for
display in the U.S.?
A. Sometimes.
Q. How many books in the Million Book Project are
available for display at Carnegie Mellon?
MR. McGOWAN: Objection. Vague as to
timing.
You may answer.
THE WITNESS: Certainly when their
servers are up, students at Carnegie Mellon
can look at about 300,000 books that were
digitized by our project in China, they can
look at some books from the library at
Alexandria that were digitized as part of our
project, they can look at some books on the
Internet archive that were digitized in China
and in India as part of our project.
There are, I believe, almost two
million books that were digitized in China,
and if a university has a license to the
database, then that university's students can
look at those books.
BY MS. ZACK:

1 Q.
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All right. Were those books in English?
Some.
And does Carnegie Mellon have a license to
display those books?
Those books are free to read.
And is that because they're out of copyright
or why are they free to read?
They're either out of copyright, they're
government publications and, therefore, either
not in -- never in copyright or there has been
copyright permission granted.
How many books were digitized in the Posner
collection?
Around a thousand.
You mentioned that Carnegie Mellon, I think,
and correct me if I'm wrong, digitized-We previously discussed the archival
collections of Dr. Simon, and then you
mentioned Drs. Newell and someone else. Who
was the other person?
Dr. Joseph Traub.
Traub?
T-R-A-U-B.
And in each case was that done by permission?
Yes.

Page 31

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25

Okay. So you said there are two million books
digitized in China approximately, and that was
through the Million Book Project?
Yes.
And that's to date?
Yes.
And you say if the university has a license to
the database. Who provides the license?
CADAL, C-A-D-A-L.
Is that an acronym?
Yes.
What does it stand for?
I'm not sure. Chinese something, and the L is
for library.
Okay. So if the university obtains a license
from CADAL to the database, the university
student can look at these two million books.
Correct?
Correct.
Does Carnegie Mellon have such a license?
No.
And why not?
We don't have Chinese -We don't offer very many-Well, we can't afford it.

i

Are these two million books in Chinese?
Primarily.
As part ofthe Million Book Project, how many
books in English were digitized?
I don't know.
Do you know approximately?
I've heard the figure, but I can't recall it.
Is it more than a million, less than a
million?
Of the total books in the Million Book
Project?
Uh-huh.
Less than a million.
You mentioned that there were 300,000 books
digitized in China that are available to
Carnegie Mellon students for display. Is that
correct?
No.
When their servers are up, you said?
In India when their servers are up.
Well, you I believe said there were 300,000
books digitized in China.
No.
Did your mean to say India?
Yes.
Page 33

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Were these books or personal papers?
Both.
Now, Paragraph 5 B of your report, which is on
Page 2, you talk about how digitization helps
libraries achieve their mission.
A. Yes.
Q. Does Carnegie Mellon engage in any -- to the
extent you're aware -- engage in any
digitizations pursuant to Section 108 of the
Copyright Act?
MR. McGOWAN: Objection to the
extent it calls for a legal conclusion.
You may answer.
THE WITNESS: What is Section 108?
BY MS. ZACK:
Q. Are you familiar with that section?
A. Is that orphan works?
Q. Section 108 is the -I don't want you to testify about it
if you're not familiar with it, but it is a
provision that deals specifically with
libraries making replacement copies,
et cetera, under certain circumstances?
A. Yes.
Q. You are familiar with it?

Page 36

1
MR. McGOWAN: You may answer.
2
THE WITNESS: We have procedures and
3
documents and practices. Mary Jo Dively, who
4
is our university counsel, pays Jonathan Band
5
to regularly give us advice on how to run our
6
E-reserves operations.
7 BY MS. ZACK:
8 Q. To give advice as to how Carnegie Mellon
9
should run its E-reserves operations to comply
10
with copyright law?
11 A. Yes.
12 Q. Now, it would serve the mission of Carnegie
13
Mellon, would it not, if Carnegie Mellon were
14
to digitize all of its works for full text
15
viewing?
16 A. I don't understand the question.
17 Q. Well, if you take away the restrictions of the
18
Copyright Act and talk about only what would
19
serve Carnegie Mellon's mission as a library,
20
wouldn't its mission be served if you just
21
digitized all the books you have and put them
22
up on the Web for full text viewing?
23 A. Probably.
24 Q. But you haven't done that. Right?

Q.
A.
Q.

Page 35

1 A. Somewhat.
2 Q. Is that something you discussed with your -just yes or no -- that you've discussed with
3
university counsel?
4

: 25 A.

No.
Page 37

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5
6 Q. Do you know whether Carnegie Mellon makes 6
digital copies pursuant to Section 108 of the
7
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Copyright Act?
8
8
MR. McGOWAN: Same objection on a
9
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legal conclusion.
10
11
You may answer.
11
MS. ZACK: Only if you know.
12
12
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THE WITNESS: Are we talking about
13
14
putting work on E-reserves?
14
15 BY MS. ZACK:
15
16 Q. Well, let me ask a different question. Does
16
17
Carnegie Mellon put works on E-reserves?
17
18 A. Yes.
18
19 Q. And what circumstances or what are the steps 19
20
that Carnegie Mellon goes through before it
20
21
allows its professors to put works on
21
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E-reserves?
22
23
MR. McGOWAN: Objection. Lacks
23
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foundation, compound.
24
25
MS. ZACK: If you know.
25

Q.
A.
Q.

A.
Q.
A.
Q.
A.
Q.

And why not?
Several reasons; copyright law, money are the
top two.
Referring you to Paragraph 5 C of your
report-Yes.
-- you talk about the payment of money for
books and for digitization, et cetera.
Uh-huh.
N ow, Carnegie Mellon does pay for print
books. Right?
Yes.
And does Carnegie Mellon now sometimes pay for
digital works in lieu of print books?
MR. McGOWAN: Objection. Vague.
You may answer.
MS. ZACK: Do you understand what
I'm asking?
THE WITNESS: So you're asking if
sometimes we pay to buy the E-book version of
a book rather than buying the print version of
a book?
MS. ZACK: Yes.
THE WITNESS: Yes.
MS. ZACK: And how do you determine

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whether to buy a print version or an E-book
version?
MR. McGOWAN: Objection.
Foundation.
You may answer.
THE WITNESS: We prefer buying
E-books.
BY MS. ZACK:
Q. SO if you're buying a book for the first time
and you have a choice, you would buy an E-book
rather than a print book?
A. Yes.
Q. And does Carnegie Mellon buy SUbscriptions to
E-journals or that type of product?
A. Yes.
Q. What particular subscriptions does Carnegie
Mellon purchase that you can recall?
A. Association For Computing Machinery, tons of
things from Elsevier, tons of things from
Springer Verlag, tons of things from all of
the sci-tech publishers for which we pay a
lot.
All of our clients prefer us to buy
things in digital format. We buy as many
databases and electronic journals and

Page 40

MR. McGOWAN: Can we do ten?
1
MS. ZACK: That's fine.
2
3
(There was a recess in the proceedings.)
4
5
---6 BY MS. ZACK:
7 Q. Dean St. Clair, do the patrons of Carnegie
8
Mellon libraries have access to Google?
9 A. Yes.
10 Q. SO persons -- or your clients as you call
11
them -- persons using your library can go on
12
computers within Carnegie Mellon's libraries
13
and have access to Google Search. Is that
14
correct?
15 A. Correct.
16 Q. Do you know what benefits Google obtains from
17
its digitization of books?
18
MR. McGOWAN: Objection. Lacks
19
foundation.
20
You may answer.
21
THE WITNESS: Not precisely.
22 BY MS. ZACK:
23 Q. Have you ever been involved in testifying
24
before Congress on orphan works legislation?
25 A. No.
Page 41

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electronic books as we can afford in the areas
that our university, which is a very focused
university, teaches and does research.
You said" all of our clients." Who do you
consider the library'S clients to be?
Our students, faculty, staff, our OSHER lifelong learning group, and everyone who walks
into one of our library buildings.
Can the general public walk into your library
buildings and use -- get digital access?
Yes, but they have to get a day pass to do
that.
Are there any requirements to get a day pass?
You have to have an ID.
It doesn't have to be a Carnegie Mellon ID?
No.
In other words, a driver's license or
something like that would work?
Yes.
MR. McGOWAN: Joanne?
MS. ZACK: Do you need a break?
MR. McGOWAN: Yeah. Ifwe could
take a quick break, that would be good.
MS. ZACK: Okay. Is five minutes
enough or do you need more?

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25

Have you submitted any materials to Congress
in connection with orphan works legislation?
Yes.
Did you say yes? I'm sorry.
Yes.
Okay. And on how many occasions have you
submitted material?
Several.
And what position have you taken?
Weare pro open access and -When you say "pro open access," what do you
mean?
Well, when calls come out about things like
the NIH, we take a positive position on the
creation of that database and the continuing
of that database and the financial
arrangements around that database.
Have you ever taken any position on particular
bills that contain suggested provisions about
how much procedurally needs to done to try to
locate copyright owners before a book is
declared to be an orphan work?
Yes.
And specifically do you recall any specific
decisions that you've taken or that Carnegie

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Mellon has taken?
A. Well, we believe that there should be a
reasonable effort to locate copyright owners,
but that then there should be some provision
for orphan works.
Q. Would it be fair to say you believe the
current copyright laws are inadequate in that
regard?
MR. McGOWAN: Objection. Vague.
You may answer.
THE WITNESS: Yes.
BY MS. ZACK:
Q. You would like them to be changed?
A. Yes.
Q. You said Carnegie Mellon believes there should
be a reasonable effort to locate copyright
owners?
A. Yes.
Q. What does Carnegie Mellon consider to be a
reasonable effort?
A. Mary Jo Dively has worked with us to put
together a work flow that we can use to
determine -- to work on copyright issues,
gaining permission.
Q. You mean the steps you should take?

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-- book or person?
No.
Who keeps records of these matters at Carnegie
Mellon?
Denise Troll Covey, Gabrielle Michalek, Ann
Marie Mesco.
Now, turning to Paragraph 6 of your report,
you talk about the Google Books project. All
of that is secondhand knowledge, I take it.
Yes, or based on what I read in Clancy.
(There was a discussion off the record.)

BYMS. ZACK:
Q. Referring you to Paragraph 6 of your report,
looking at all the sentences in that paragraph
other than the last sentence, does that all
come from your review of materials rather than
your firsthand knowledge?
A. A review.
Q. You're saying yes, it comes from a review?
A. Primarily.
Q. Does it come in any way from firsthand
knowledge?
A. Well, I was a member of the Digital Library

Page 43

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3 A.

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23 A.
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25 A.

Yes.
And what steps does that entail?
We try to locate the rights-holder, and then
if we are unable to locate the rights-holder,
we think about putting the work -- making the
work available on the Web with the idea that
if a rights-holder objected, we would
instantly take the work down.
Have you ever done that?
Yes.
You've put work on the Web without permission
even though it was in copyright?
Yes.
And when did you begin doing that?
Seven, eight years ago.
How many such works have you placed on the Web
that were in copyright without permission?
I don't know.
Has anyone come forward and asked you to take
them down?
One.
I'm sorry?
One.
Do you recall the name of that -No.

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25 Q.

Federation and all of these people were
members of the Digital Library Federation, and
we met together twice a year.
And did they discuss with you at that time
their participation in Google Books or Google
Library project?
No.
So did you-You became aware, I assume, from
public information that this was happening.
Right?
Yes.
And you never discussed it with anyone from
Michigan or Harvard or Stanford or Oxford or
any other public library?
No.
All right. The last sentence of Paragraph 6
says as discussed below, Google's interest in
digitizing books stemmed in part from the
Million Book Project, of which I am a
director.
Did you ever have a discussion with
anyone from Google about this?
No.
All right. So you gleaned that from their

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Page 48

website?
Yes. You can search them on a
Yes.
2
computer.
Referring you to Paragraph 9 of your report,
3 BY MS. ZACK:
you talk about the history of indexing from
4 Q. And the search would be limited there to what,
card catalogs to computerized MARC records.
5
title, title information?
Do you see that?
6A. Author, title, publishing information,
I do.
7
typically two or three subject headings and
The MARC system, what does MARC stand for?
8
some kinds of notes about additions and so
Machine something readable something.
forth.
9
All right. Is that -10 Q. Okay. So there's no searching within the
What exactly are MARC records?
11
books in connection with those records.
MARC records are essentially the electronic
Right?
12
version of a catalog card record.
13 A. Right.
Who creates that version?
.14 Q. It's like searching a card catalog on a
Catalogers.
15
computer?
And does Carnegie Mellon pay for access to
16 A. Yes.
MARC records?
17 Q. Do you know how much Carnegie Mellon pays MARC
Yes.
18
on a yearly basis for access to the use of
And MARC is a separate entity from any given Ii 19
those MARC records? Or pays OCLC; excuse me.
library?
20 A. Probably a dollar something.
MARC is a format. It's a template that you
21 Q. When you say a dollar something, what do you
use to describe a book, a journal article, a
22
mean?
piece of realia.
23 A. 1 can recall at one time we were paying
And what company creates MARC records?
78 cents, and at one time we were paying
24
The Library of Congress creates many MARC
25
$1.04. I'm not sure what we're paying today.
Page 47
records, and libraries around the country

1 Q.

2

create their own subset of MARC records and

2

3

contribute those to a nonprofit entity called

4

OCLe.

3A.
4 Q.
5A.
6 Q.
7A.
8 Q.
9

6

And then Carnegie Mellon pays OCLC to use MARC
records?

7 A.

Yes.

8 Q.

Is what is that subscription fee?

9 A.

It varies back and forth. I believe right now

lOwe may have a subscription that allows us to

10

11

do X amount of use of MARC records for our

12

own -- to move those records from OCLC into

13

our local library system.

11
12
13 A.
14 Q.

14 Q.
15

And MARC records are, as you said, basically a
digital version of the old card catalog?

16 A.
17 Q.

SO they contain --

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Yes.
And they're searchable on the

18 Q.
19

computer?
MR. McGOWAN: Objection. Vague.

20

21

You may answer.

22

MS. ZACK: Can you search MARC

21 A.
22 Q.
23 A.
24
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records on a computer?
THE WITNESS: You can both search
them on the Web and you can --

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Page 49

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5 Q.

,

I

For the entire year for the entire use of the
record?
Per record, a one-time fee for long-term use.
Per record or for all records?
Per record. So for -Does that mean per book or -Well-If it was a book, it would be a one-time
fee -For the record, for that particular
book if we're talking about a book, would it
be forever? Is that what you're saying?
Yes.
So if you had a million books you would
multiply it by a dollar to get the the amount
you would be paying?
Yes.
Do you purchase any -Do the Carnegie Mellon libraries
purchase any services from Bowker?
Probably.
What type of services?
I believe that Bowker produces some things
that I would call databases, and we license
those databases.

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Bowker also produces -Q. I'm sorry. Go ahead.
A. Bowker -Bowker also produces print books.
Q. What databases does Carnegie Mellon libraries
purchase from Bowker?
A. I don't know.
Q. Are there any other computerized records other
than the MARC records that Carnegie Mellon
libraries uses?
MR. McGOWAN: Objection. Vague.
You may answer.
THE WITNESS: We also use EAD which
is an archival format, and we use Dublin Core
which I would call MARC light, and we're
beginning to use a new format that I will call
for lay purposes MARC heavy.
BY MS. ZACK:
Q. I'm sorry. I got Dublin Core and MARC heavy.
What was the third, the first one you
mentioned, A -A. E, as in Edgar, AD.
Q. Does that stand for something?
A. Probably encoding archival description or
something like that.

1 Q. Such as?
2 A. Such as the nature of the electronic files,
3
who produced them, when they were produced,
4
where they were produced, what kind of files
5
they are, file protocols.
6 Q. SO it has additional metadata about the book?
7 A. MARC, MARC heavy and MARC light are all
8
metadata.
9 Q. Right, so I'm saying it has additional
10
metadata.
11 A. Yes.
12 Q. And MARC heavy?
13 A. Right.
14 Q. But there's no searching within the book with
15
MARC heavy either. Right?
16 A. Yes.
17 Q. And do the MARC heavy records cost more per
18
book?
19 A. I don't know.
20 Q. But like the regular MARC records they're
21
purchased on a licensed basis?
22 A. Well, yes. We would acquire them in the same
23
way that we acquire regular MARC records.
24 Q. Is that considered a license or -25
MR. McGOWAN: Objection to the

Page 51

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Is that something that Carnegie Mellon
acquires from a third party?
No.
Is that produced in-house?
Yes.
What about Dublin Core?
Produced in-house.
What about MARC heavy?
We will both produce it in-house and acquire
it.
Where do you acquire it from?
OCLC.
And is that something that's also paid for -Yes.
-- when acquired from OCLC?
Yes.
And what's the difference between this product
that you're calling MARC heavy and the product
you previously described, the MARC product?
MARC itself is -- grew up maybe thirty years
ago, and MARC heavy is an effort to make it
work better with digital resources.
Does it have any additional information or is
it just a functionality improvement?
It has additional information.

Page 53

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extent it calls for a legal conclusion.
MS. ZACK: If you know.
MR. McGOWAN: You may answer.
THE WITNESS: I don't know.
BY MS. ZACK:
Q. Okay. There's a sentence within Paragraph 9
on Page 3 that carries over to Page 4 at the
very bottom of Page 3. It says but over the
history of indexing -Do you see where I am?
A. Yes.
Q. -- from card catalogs to computerized MARC
records, libraries have not paid authors nor
sought their permission merely to index or to
search through their books?
A. Yes.
Q. I wasn't sure what you meant by "or to search
through their books."
A. We've never paid authors for our people to
come in and flip through a book.
Q. Are you talking about browsing?
A. Yes.
Q. Referring you to Paragraph 12 of your report
which is at the bottom of Page 4, you're
setting examples of digitization projects not

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affiliated with academic or local libraries.
Correct?
In Paragraph 12?
Yes, which carries over -Carries over onto Page 5.
Right.
Yes.
You mentioned project Gutenberg?
Yes.
Do you know if that involved any in-copyright
books?
It did not.
What about the Library of Congress' American
Memory project?
Did that involve any in-copyright
books?
No.
What about the Making of America project?
No.
No in-copyright books?
None.
And then you mention lastly the Million Book
Project which we'll discuss, you know, more
fulsomely in a moment.
Turning to the Million Book Project,

Page 56

1
project. Correct?
2 A. Correct.
3 Q. There's a -4
On the top of Page 7 there's a
5
sentence that says in spring and summer of
6
1999, many librarians dismissed this idea even
7
though it would have brought work to their
8
states and even though the NSF program
9
officer, Michael Lesk, made clear that NSF
10
believed it could provide $25 million in
supplemental funding for such efforts if
11
libraries showed initiative in pursuing them.
12
So NSF here is the National Science
13
14
Foundation. Is that correct?
15 A. Correct.
16 Q. Are you saying that the National Science
17
Foundation was willing to provide $25 million
18
in funding for a major library digitization
19
project?
20 A. The National Science Foundation was willing to
21
ask Congress to provide $25 million if these
22
libraries which were in these states would
23
undertake this project.
24 Q. Was that a project similar to the Million Book
25
Project you were considering?

Page 55

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you mentioned before the break or earlier in
the deposition that you had a series of
conversations with Dan Clancy about it.
Did Google ever offer to provide any
funding for the Million Book Project?
That's the conversation we were having.
Did they ever offer to provide any funding?
We were asking them to give us funding in
return for our scanned content.
And those conversations culminated in nothing
coming of that, I guess. Right?
Right.
Because of the objections of your foreign
partners?
I'm not certain what all the factors were, but
certainly our foreign partners were not as
eager to do that as the directors of the
universal library were.
Referring you to Page 7 of your report, the
top ofthe page which is part of
Paragraph 19 -Yes.
-- there occurs in your report in a discussion
of your attempts to interest various libraries
to engage in some sort of major digitization

Page 57

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Yes.
But in the U.S.?
Yes.
SO it would have involved digitization of
books in the U.S.?
Yes.
And would that have been with permission for
in-copyright books?
I don't know.
Well, at the time wasn't that your practice,
to get permission for in-copyright books?
Well-MR. McGOWAN: Objection. Vague.
You may answer.
THE WITNESS: Our thinking at that
time was that we would work on books that were
pre-'23.
In that same time period we
created -- we scanned all of the copyright
renewal records, and Dr. Lesk himself
personally programmed them so that they became
searchable so that we could look at the
copyright status of books that were published
between 1923 and 1963, and that database is
still available. Stanford hosts it.

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Page 58

1 BY MS. ZACK:
2 Q. Right. That was to facilitate a potential
3
digitization project?
4 A. Yes.
5 Q. SO the National Science Foundation was willing
6
to put up $25 million for libraries to
7
digitize. Correct?
8
MR. McGOWAN: Objection. Asked and
answered.
9
10 BY MS. ZACK:
11 Q. Correct?
12 A. They were willing to ask Congress for
13
$25 million.
14 Q. But the libraries didn't want to do the
15
digitization?
16 A. Correct.
17 Q. And why was that?
18 A. They didn't have the vision.
19 Q. Now, with respect to the Million Book Project,
20
do you know the total amount of funding that
has been received for that project from its
21
inception to date?
22
23 A. The National Science Foundation project from
the National Science Foundation?
24
25 Q. No, I'm sort of changing subjects a little

Page 60

the feasibility study, one is the Posner
2
collection study, and one is the Million Book
3
Project study. Is that right?
4 A. They're not digitization efforts.
5 Q. Well, you generally discuss in your report the
feasibility study, the Posner collection
6
7
study, and the Million Book project study.
Correct?
8
9 A. Correct.
MS. ZACK: Can we mark as Exhibit
10
px-11
I guess it's 88. Correct?
12
MR. McGOWAN: It is 88. Yes.
13
MS. ZACK: -- an article entitled -14
dated January, 2005, and it's entitled
15
Acquiring Copyright Permission to Digitize and
16
Provide Open Access to Books, and it says from
17
the selected works of Denise Troll Covey, 63
18
19
pages
20
MR. McGOWAN: We have that, Joanne.
21
MS. ZACK: You have that?
MR. McGaW AN: Yes.
22
23
24
(Plaintiffs' Exhibit No. 88 marked for
25
identification.)
1

Page 61

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bit.
Okay.
Backjust generally to the Million Book
Project, and I'm saying from all sources, what
is the total funding that has been received
for that project from its inception to date?
U.S. funding has only been from the National
Science Foundation to the tune of about
$3.6 million.
And what about other sources of funding?
The government of China, the government of
Egypt, and the government of India each
provided funding for all of the labor and all
of the research that went on in their
countries and the value of that was many
times -- many, many, many times more than the
funding provided by the National Science
Foundation.
Has that ever been quantified?
Yes. It's in my published works.
And you don't recall those numbers right now?
No.
So you discuss in your report -I believe you discuss three
different digitization efforts. One you call

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MS. ZACK: And it's been marked?
MR. McGaW AN: Correct.
BY MS. ZACK:
Q. Now, you cite this article in your report.
Correct?
A. Correct.
Q. And Denise Troll Covey works for you.
Correct?
A. She works for Carnegie Mellon University
libraries.
Q. Does she report to you?
A. She does.
Q. And she also did so in 2005. Correct?
A. Correct.
Q. And then in 2005 and prior to that she was the
is principal librarian for special projects at
Carnegie Mellon University library?
A. Yes.
Q. Was she-What was her role with respect to
these three studies, the feasibility study,
the Posner collection study and the Million
Book Project study?
MR. McGaW AN: Objection. Compound.

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You may answer.
THE WITNESS: She was in charge of
~m

BY MS. ZACK:
Q. She was in charge of all three studies?
A. Yes.
Q. This article which we've marked as PX 87 is a
fairly comprehensive discussion and
description by her of those three studies.
Correct?
MR. McGOWAN: I just want to note
for the record, Joanne, it's 88.
MS. ZACK: Oh, it's 88?
MR. McGOWAN: Yes.
MS. ZACK: Sorry.
MR. McGOWAN: And then I'm going to
object that it's vague.
You may answer.
THE WITNESS: It's a description of
these projects.
BY MS. ZACK:
Q. Did you read this before it was published?
A. Not that I recall.
Q. Did you read it after it was published?
A. Yes.

Page 64

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copyright law also allows digitization for
preservation purposes in certain
2
3
circumstances, but access to the online copy
4
must be restricted to users physically in the
library that created the digital copy.
5
6A. Yes.
7 Q. Do you agree with that?
MR. McGOWAN: Objection. Vague.
8
You may answer.
9
MS. ZACK: I mean do you agree with
10
that statement.
11
THE WITNESS: I'm reading.
12
MR. McGOWAN: And I'll object to the
13
extent it calls for a legal conclusion.
14
15
You may answer.
16
THE WITNESS: Yes. I agree.
17 BYMS. ZACK:
18 Q. The next sentence, it says to provide open
19
access or even authenticated remote access to
20
those digitized works requires permission from
21
the copyright owner of each title.
22
Do you agree with that?
23 A. I think so.
24 Q. The second full paragraph on this page which
25
begins, however, on January 26, 2005 --

Page 63

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Do you consider it to be accurate?
Yes.
And you relied on it in your report. Correct?
Yes.
And this article has, you know, quite a bit
more detail than you have included in your
report. Correct?
Yes.
Now, if you could open, I guess -- I believe
they're numbered at the top so we'll refer to
the numbers at the top of the pages -- with
NPXAD 8, Page 1, and it also says
Introduction.
Yes.
And the first paragraph of the introduction,
the last sentence, it says realizing this
dream -- creating a digital library that is
comparable to an excellent traditional library
and providing open access to it -- requires
negotiating copyright permission.
Do you agree with that statement?
Yes.
Referring you to numbered Page 8 -Yes,
-- the first full sentence on Page 8 says

Page 65

1
Do you see that?
2 A. I do.
3 Q. It says the U.S. Copyright Office issued a
notice of inquiry regarding orphan works, and
4
then it says further down the Copyright Office
5
received 721 additional comments and 146
6
replied comments.
7
Do you know if you at Carnegie
8
Mellon made any comments in connection with
9
this particular legislation or call for
10
legislation on January 6, 2005?
11
12 A. Probably.
13 Q. And you expressed the opinion that you
previously testified about?
14
15 A. Yes.
16 Q. Referring you to Page 10 at the very bottom,
the carry-over sentence that goes to Page 11,
17
it says creating a digital library that is
18
comparable to an excellent traditional library
19
requires negotiating copyright permission to
20
digitize and to provide open access to an
21
array of materials.
22
23
Would you agree with that?
24 A. I'm reading.
I see some kind of sequence problems
25

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Page 66

possibly in that sentence.
1
2 Q. What do you mean?
3 A. I mean that I wouldn't see that you
necessarily had to seek permission before you
4
digitized. I would see that you should-5
that it would be desirable for you to seek
6
permission before you opened the text to the
7
Web to be read in full text form.
8
9 Q. But you previously testified, did you not,
that you are not aware that Carnegie Mellon
10
has ever digitized before it received
11
permission. Correct?
12
MR. McGOWAN: Objection. Misstates
13
prior testimony.
14
You may answer.
15
THE WITNESS: Could you ask the
16
question again, please?
17
18 BY MS. ZACK:
19 Q. I think you previously testified that you
could not state that Carnegie Mellon had ever
20
digitized a book before it received -- an
21
in-copyright book -- before it received
22
permission to do so.
23
24 A. I don't make those kind of sequential
distinctions.
25

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Well, let's stop there.
Q. Okay.
MR. McGOWAN: I'll note for the
record, and I don't know that this matters to
you, Joanne, "open access" is a defined term
in this paper, and I don't know if that's part
of what your questions are concerning, but
I'll just note it so it's clear.
BY MS. ZACK:
Q. Refelling you to the next -- further down, the
random sample feasibility study then is
discussed, is that correct, on Page 11 ?
A. Yes.
Q. And it says between 1999 and 2001 the Carnegie
Mellon University libraries conducted a
feasibility study to determine the likelihood
of publishers granting nonexclusive permission
to digitize and provide surface Web access to
their copyrighted books.
The primary goal of the project was
to develop an understanding of the process,
the time it takes, and the problem
encountered.
We also wanted to ascertain whether
different types of publishers responded

Page 67

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Well, whether you do or don't, as a matter of
fact, books have been digitized at Carnegie
Mellon, and either permission was granted or
was not granted prior to the digitization, so
do you know whether it was or was not?
I don't know.
The first full sentence on the top of Page 11
says given the cost of acquiring and storing
redundant library collections, it behooves
libraries to explore the possibility of
acquiring permission to digitize and provide
open access to different kinds of materials.
Did you agree with that in 2005?
Well, I didn't read this before she published
it.
But you said you read it after she published
it.
Yeah, recently I read it.
Did you read it shortly after she published
it?
No.
Do you agree with that sentence today?
I believe that libraries must try to seek
permission in some form. There's more than
one way to do that, and I'm --

i

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25 Q.

differently and whether they responded
differently on the basis of the type or print
status of their publications.
So is that an accurate description
of the random sample feasibility study's
purposes?
Yes.
Was this a study that you participated in
designing?
Yes.
And this study took place between 1999 and
2001. Correct?
Yes.
And on Page 12, the first paragraph, last
sentence, it says in PX 88 the final sample
for which we were seeking copyright permission
included 277 titles published by 209
publishers.
Is that right?
Yes.
Your overall results on Page 13 talks about
the various results of this feasibility study
conducted between 1999 and 2001. Correct?
Yes.
And you said you've recently read this

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publication?
Yes.
And you've cited it in your report fairly
extensively. Correct?
Correct.
Is there anything in these overall results
that you think is inaccurate?
I don't recall that I had -- that there was
anything that I thought was particularly
inaccurate. I thought some of the figures
were designed in a way that was confusing.
Well, whether it was confusing, did you still
consider it accurate?
Yes.
Now, on Page 21 there begins a discussion in
PX 88, the fine and rare book study. Is that
the same as the Posner study?
"Posner."
"Posner." Excuse me.
Yes.
And that was commenced in 2001?
Yes.
Do you know when that ceased? It says 2004 on
Page 21, so does that sound right?
Yes.

Page 72

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Did you personally participate in attempting
to get copyright permissions in connection
with either the feasibility study or the
Posner study?
Yes.
How much time did you spend on that?
Whatever is recorded on the cost sheets.
On the what? I'm sorry.
On the cost sheets.
Did you personally speak to publishers?
I personally spoke to the employees of
publishers.
One of the statements in this article, PX 88,
is that university presses were less likely to
give permission than some other types of
publishers. Do you recall that?
MR. McGOWAN: Can you direct us to
where you are referring to, Joanne?
MS. ZACK: Sure.
MR. McGOWAN: Thank you.
MS. ZACK: Okay. If you look at
Page 31, which is at the end of the section
called Analysis by Publisher Type, it says
more than half of the commercial publishers
granted permission.

Page 71

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And the bottom paragraph on Page 21, it says
we knew that the selection, referring to the
Posner collection, or "Posner" collection -Right?
No, "Posner."
Now I'm confused.
We knew that the collection
contained some copyrighted titles and
therefore that the project entailed acquiring
copyright permission.
The Posner project, which took place
between 2001 and 2004, became our second
copyright-permission study.
Is that an accurate description of
the study?
It is.
It was a copyright permission study?
Yes.
And again did you find in reading this in
connection with your report anything that you
considered inaccurate?
I think there are some phrases that are not
the phases I would have used.
Yes, but is there anything that's inaccurate?
Not that I observed.

Page 73

1
University presses were the least
2
likely to grant permission.
3
Do you see that?
4
THE WITNESS: In the Posner study?
5 BY MS. ZACK:
6 Q. Uh-huh.
7 A. I haven't found this yet.
8 Q. It's on Page 31.
9 A. Oh, here it is. Yes. So that's about the
10
Posner study.
11 Q. Correct.
12 A. Yes. That was what Denise concluded.
l3 Q. Do you disagree with that?
14 A. No.
15 Q. Did you have any view about why that was the
16
case?
17 A. Well, the Posner collection is a fine and rare
18
book collection, so there weren't very many
19
university presses' titles in it, and it was
20
such a relatively small -21
It wasn't a random sample. It was a
22
collection. It was a quirk.
23 Q. You think it was just a quirk?
24 A. Yes.
25
MR. McGOWAN: Joanne, when it's

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convenient, I think we could use a break on
this end.
MS. ZACK: All right. Just give me
one second to foJlow up and finish off this
one.
MR. McGOWAN: Sure.
MS. ZACK: All right. WeJl, let's
take a break now. How long do you want to
take?
MR. McGOWAN: Can we do lunch right
now?
MS. ZACK: You want to do lunch?
MR. McGOWAN: Yes. Well, it's
twelve. Let's go off the record and we can
talk about it.
(There was a discussion offthe record for lunch.)
---BY MS. ZACK:
Q. Before the break I had asked you about the
university presses and specifically about the
Posner study, and Ijust wanted you to take a
look at Page 46 ofPX 88, which is the article
requiring copyright permission.
A. Okay.

Page 76

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university press books involved and that it
2
was just a quirk that university presses were
3
the least likely to get permission. Correct?
4 A. I did say that.
5 Q. Okay, but it appears that that was true also
6
with the Million Book Project. Do you have
7
any explanation for that?
8 A. No.
9 Q. Referring you back to Page 24, PX 88, it would
10
be the acquiring copyright permission article
II
we have been discussing.
12 A. 24?
13 Q. 24.
14 A. Okay. Yes.
15 Q. This is again relating back to the Posner
16
study.
17 A. Okay.
18 Q. The last sentence of the next-to-the-last
19
paragraph says by the conclusion of the study
20
we determined that these 284 copyrighted works
21
were owned by 104 different copyright-owners.
22
Do you see that?
23 A. Yes.
24 Q. SO the Posner study then examines Carnegie
25
MeJlon's ability to get permission for these

Page 75

1 Q. At the top of the page the sentence begins as
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in the Posner study -3
Do you see that?
4 A. Yes.
5 Q. -- special publishers, authors -6
(There was a discussion off the record.)
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BY MS. ZACK:
Q. I'm referring to Page 46 -A. Yes.
Q. -- ofPX 88.
At the top is a sentence that says
as in the Posner study, special publishers,
authors, and estates and scholarly
associations were the most likely to grant
permission. University presses were the least
likely.
Do you see that?
A. I do.
Q. And that's in connection with the Million Book
Project. Correct?
A. Correct.
Q. You had previously said that you thought on
the Posner study there weren't enough

Page 77

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284 copyrighted works. Is that correct?
2 A. Yes.
3 Q. On Page 27 and 28, the -4
There's a heading Overall Result on
5
Page 26, and on Page 27 and then carrying over
6
to Page 28 there's a couple paragraphs talking
7
about the result of the study. It says -8
Do you see the paragraph that says
9
to better understand the outcome?
IDA. Ido.
i 11 Q. To better understand the outcome of our
12
efforts, we must look strictly at the
13
publishers we located.
Of those we contacted, almost all
14
responded and most granted permission. As
15
16
shown in Figure 11, the permissions granted
enabled us to digitize and provide Web access
17
to 71 percent of the copyrighted titles
18
published by those we contacted.
19
20
Do you have any disagreement with
21
that as a matter of fact?
22 A. No.
23 Q. Page 28 at the top it says looking only at the
24
publishers with which we have completed
25
negotiations and the titles in the Posner

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collection to which they hold copyright, the
overall success rate was 70 percent, granting
permission for 75 percent of the titles
published by those that responded
So that's correct?
Yes.
So for those titles I take it they were then
digitized and made available on the Web.
Right?
They were digitized and you can get to them
from the Web.
And that was as a result of permission
received from the publishers. Correct?
Correct.
On Page 33 ofPX 88 -My pages are kind of shuffled, ma'am, so it
may take me a minute to try to find it -I have it now.
-- there's a couple bullet points in the
middle of the page.
Do you see that?
Yes.
Referring you to the first one, it says
publishers of older material in the Posner
collection were not conspicuously more

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letter to prompt follow-up by E-mail or
telephone and to the publishers' ability to
see the quality of the digitized books in the
Posner collection on the Web.
A. Yes.
Q. Do you agree with that?
A. I do.
Q. Further down is a paragraph that begins the
Posner project confirmed our belief that it is
possible to secure copyright permission to
digitize books and to provide open access to
them on the Web.
Do you agree with that?
A. Yes.
MR. McGOWAN: I'll object just for
rule of completeness' sake to the cherrypicking element, but I'll note that for the
record.
BY MS. ZACK:
Q. It says it also confirmed what we had learned
in the feasibility study about how difficult
and time-consuming it is to determine
copyright status and to identify and locate
copyright-holders, particularly authors and
estates.

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However, by dedicating personnel and
adjusting our processes, we significantly
reduced the cost per title for which
pennission was granted.
Further adjustments to our work flow
or refinements to our negotiation strategies
would yield even greater cost savings.
Do you agree with that?
It says "could," not "would," and yes, I
agree.
Then on Page 38 ofPX 88 it begins a
discussion of the Million Book Project study.
Correct?
Correct.
You had partners in China and India. Did you
have any U.S. partners in this Million Book
Project?
Kind of.
Yes? Who were they?
Well, certainly Brewster Kahle was our partner
for quite a long time. I went and gave a talk
at Hopkins, and they talked to us about it.
At various points -We had communications with Cornell
at various points. We had dealings with the

5

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Q.

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difficult to locate than were publishers of
more recent material.
More diligence and persistence were
expended on locating and following up with
publishers in the Posner study than in the
feasibility study; consequently, more
publishers were found and more of them
responded than in the feasibility study.
Do you agree with that?
Yes.
And that is more diligence and persistence
were expended by personnel at Carnegie
Mellon. Correct?
Yes.
On Page 5, there's a heading Conclusions and
Lessons Learned. It says although we located
fewer of the publishers of copyrighted content
in the Posner project than in the feasibility
study, we greatly increased the response and
success rates during the Posner study.
Is that true?
Yes.
And further down the page it says we
attributed the increased success in the Posner
project to a more informative initial request

A.

Q.

A.
Q.

A.
Q.
A.

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Page 84

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University of Merced as they were building
their collection -- the University of
California at Merced.
Any others?
I think the University of Washington helped us
out and traveled with us at one point.
Oregon State University did part of
a project that was under the umbrella of the
Million Book Project.
Anyone else?
Not that I recall.
What was Brewster Kahle's involvement in the
Million Book Project?
Brewster Kahle actually believed that he had
thought up the idea of the Million Book
Project, and he was very actively involved
with the library at Alexandria.
He traveled with us in our trip to
India and -- in our first trip to India and in
our first trip to China.
Yes, and did he participate in negotiations
with your partners there?
At Alexandria, certainly. Yes, he did. When
we had partner meetings, he attended.
Was he considered a partner?

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partner and you said yes.
I misspoke.
So you're saying now you're not sure whether
he is or isn't a partner currently?
From the perspective of the universal digital
library directors he is still a partner.
And has he ever expressed anything to the
opposite?
I don't know.
Does he attend partner meetings?
One of his staff attended a partner meeting
that was held in Pittsburgh.
Recently?
Perhaps five years ago.
Okay. So since that meeting five years ago
has he or any of his representatives attended
any meetings of the Million Book Project
partners?
Him, I don't know.
Do you keep minutes of that group -No.
-- of the meetings?
No.
Have you discussed with him the Million Book
Project in the last five years?

Page 83

1 A.

Yes, at the beginning of the project.
2 Q. And did he cease to be a partner at some
3
point?
4 A. Yes.
5 Q. When was that?
6A. At some point he didn't think we were doing
things quickly enough, and so he founded a
7
group called the Open Content Alliance and
8
pulled together a partnership with Microsoft
9
in order to have control of his own project.
10
11 Q. So when he founded the Open Contents Alliance
, 12
, did he cease to be a partner with the
113 Million Book Project?
14 A. No, not from our perspective.
15 Q. When did he cease to be a partner?
MR. McGOWAN: I think that misstates
16
17
the answer.
18 BY MS. ZACK:
19 Q. Oh. Did he ever cease to be a partner from
20
your perspective?
21 A. No.
22 Q. From his perspective did he cease to be a
23
partner?
24 A. I don't know.
25 Q. I previously asked you did he cease to be a

Page 85

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No. Well, five years. When would that be?
20017
Well, at the time that he-From the time he began Open Contents
Alliance, have you discussed the Million Book
Project with him?
Yes.
And in more recent years, say from 2007 on,
have you discussed it with him?
When we met here in Pittsburgh and he sent a
representative, who to my recollection did not
attend the partner meeting, that was our last
kind of quasiforrnal contact with him.
Dr. Reddy is often in San Francisco,
and I don't know what other discussions they
may have had.
Now, you said that Brewster Kahle believed he
had thought up the idea for the Million Book
Project?
Yes.
Had he thought up the idea?
Probably.
And when he expressed that he didn't think you
were moving quickly enough, what did he want
you to do to move quicker?

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He wanted to have all of our books to load
into the Internet archive more quickly.
When you say "our books," you're talking about
the Million Book Project books?
Yes, the project in India and the project in
China.
And from your perspective why was it taking so
long to load books into the Internet archive?
We had originally anticipated that we would
use file transfer protocol to move books
around, but in the end the network in India
was not robust enough to accomplish that.
Any other reasons?
Well, I think there were also political
reasons. Our memoranda of understanding
required the partners to share books with each
other, to share digital copies of books with
each other, but in practice we were very
surprised to find out that the librarians and
to an extent the computer scientists in those
countries didn't want to share.
You're talking about in India and in China?
Yes.
Now, with respect to these other U.S. partners
in the Million Book Project you named,

Page 88

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the early 2000s from embarking on a
digitization project even though the National
Science Foundation had offered significant
funding. Is that right?
In 1999.
Right. 1999 that happened. Right?
Yes.
And I assume since 1999 there has been a
change in librarians' views about
digitization.
Yes.
A fairly significant change?
Yes.
Not just at Carnegie Mellon but all over the
country. Right?
Yes.
And has any consortium oflibraries, to your
knowledge, attempted to go back to the
National Science Foundation and get funding
for a digitization project?
No.
And why not?
MR. McGOWAN: Well, I'm going to
object.
MS. ZACK: To your knowledge. I'm

Page 87

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Hopkins, Cornell, University of California at
Merced, University of Washington, Oregon
State, did they digitize any books for you?
A. No.
Q. What types of things did they do?
A. Well, sometimes they traveled and attended
strategy meetings with us, and sometimes they
loaned books to the project, loaned physical
books to the project.
Q. And were those books then sent out of the U.S.
to be copied?
A. Yes.
Q. Why didn't you copy them here?
A. It was too expensive.
Q. 1-MR. McGOWAN: I think you guys may
have talked over each other.
BY MS. ZACK:
Q. I'm sorry. My question, I didn't know ifit
was clear. Why were they not copied in the
U.S.?
A. My answer was it was too expensive.
Q. I see.
Now, you mentioned earlier that lack
of vision had prevented various libraries in

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only asking for what you know.
MR. McGOWAN: I'm going to object to
this intrinsically. Very compound and calls
for speculation, but you may answer.
THE WITNESS: I only know of two
librarians who have gotten funding from the
National Science Foundation. I'm one of them,
and Michael -- what's his name -- who's the
director of the libraries at Stanford is the
other.
BY MS. ZACK:
Q. Do you know of others who have tried to get
funding?
A. Yes.
Q. And have been turned down?
A. Yes.
Q. Do you know of any consortium of university
libraries that has attempted to get National
Science Foundation funding for book
digitization and has been turned down?
A. No.
Q. Have you attempted to put together a
consortium -A. No.
Q. -- in more recent years?

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Page 92

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No.
And surely that's crossed your mind. Right?
No.
Why not?
Well, I had my own consortium. I had the
Million Book Project.
Right. You didn't think you could start
another project?
Not while I was doing the Million Book
Project.
Referring you back to PX 88 beginning at
Page 38, the Million Book Project study is
discussed. I assume you've read this
recently. Correct?
Yes.
Did you find anything you considered to be
inaccurate as a matter of fact?
No.
From my understanding from reading this, a
decision was made to approach publishers to
get permission for large amounts of their
books. Correct?
Yes.
Because that would be more efficient. Is that
right?

I

1 A. Yes.
2 Q. And on Page 54, first full paragraph, it says
3
while the experiment demonstrated that the
4
Authors Registry is a cost-effective way to
5
locate authors, the benefit of contacting
authors or their estates for the Million Book
6
Project was quite small.
Do you agree with that?
9A. Yes.
10 Q. Outside the Million Book Project have you ever
at Carnegie Mellon used the Authors Registry
11
12
to locate authors?
13 A. Outside of the work that's reported in
14
acquiring copyright?
15 Q. For the Million Book Project.
16 A. For the Million Book Project?
17 Q. Outside of what you did with the Million Book
18
Project, have you ever used the Authors
19
Registry as a way to contact authors for other
20
permissions?
21 A. I think we might have used it in the Posner
22
project permissions.
23 Q. Have you used other agencies to get author
24
permissions?
25 A. No.

~

Page 93

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Yes.
Q. On Page 42 there's a heading that says
Tracking the Data.
A. Yes.
Q. Above there is a sentence that says the data
analyses in this report are based on the 364
publishers with which we sought to close
negotiations.
A. Yes.
Q. Does that mean that in the Million Book
Project with respect to in-copyright books the
various partners sought to negotiate
permission from 364 publishers for as many
books as you could get them to agree to?
MR. McGOWAN: Objection. Vague.
You may answer.
THE WITNESS: Yes.
BYMS. ZACK:
Q. Referring you on Page 46 -Forget that. Sorry. We already
went over that.
On Page 53 at the bottom of the page
it talks about contacting the Authors Registry
in an attempt to get permission directly from
authors for some books.

1 Q. Are you aware that there are many freelance
2
independent contractor people who deal in
3
getting permissions for copyrights?
4
MR. McGOWAN: Objection. Lacks
5
foundation.
6
You may answer.
7
THE WITNESS: No.
8 BY MS. ZACK:
9 Q. At the bottom of Page 54 is a heading
10
Conclusions and Lessons Learned.
11 A. Yes.
12 Q. And near the bottom of the page there's a
13
sentence not counting the publishers we
14
abandoned early in the project-15
Do you see that?
16A. Ido.
17 Q. -- almost all of the publishers we contacted
18
in the MBP responded to our request.
19
Is that correct?
20 A. Yes.
21 Q. In the middle of Page 55 there's a paragraph
22
that starts Figure 24 -23
Do you see that?
24 A. I do.
25 Q. -- suggests that the Posner study is our most

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successful project to date in terms of
response and success rates. However, the
transaction costs per title for pennissions
granted in the Posner study, though
significantly better than the feasibility
study, is far too high to pursue on a large
scale.
Despite the lower overall success
rate, the per-publisher approach taken in the
MBP garnered permission for significantly more
titles at less cost than the per-title
approach of the previous projects.
Do you agree with that?
I do.
And that per-title -- or that per-publisher
approach ended up with you, Carnegie Mellon or
the Million Book Project, obtaining permission
for 52,900 titles. Right?
Right.
And there is a chart in the middle of Page 55
that compares the various studies, the
feasibility, the Posner, the Million Book
studies, and various costs and success rates.
Correct?
Correct.

Page 96

1
transaction costs from the feasibility study
2
to the Million Book study. Right?
3 A. Yes.
4 Q. Referring you to Page 57 -5A. Yes.
6 Q. -- at the very bottom of the page it says the
MBP, meaning the Million Book Project,
7
confirmed that dedicated personnel,
8
experimentation, and flexibility are critical
9
to success in acquiring copyright permission
10
to digitize and provide open access to books.
11
12
Do you agree with that?
13 A. Yes.
14 Q. Then it says adapting strategies and adjusting
15
processes to accommodate what we learn day-to16
day could further improve the results of our
17
efforts.
18
Do you agree with that?
19 A. Yes.
20 Q. Again we need to develop a better way to
21
manage the data and routinely calculate
statistics. More sophisticated ongoing
22
analyses might expose trends that could be
23
leveraged during the project to reduce the
24
cost and increase the success of seeking
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And the feasibility study, 209 publishers were
attempted to be contacted. Correct?
Yes.
And as a result of that, permission for only
66 titles was granted?
Yes.
At a transaction cost of $200 per title?
That was a partial cost.
That's an estimated partial cost. Correct?
Yes.
For the Posner study there were 104 publishers
sought to be contacted, and as a result
pennission was granted for 178 books at a
transaction cost per title granted of $78 per
book. Is that right?
Yes.
And then for the million books project there
were 364 publishers attempted to be contacted
ending up in permissions granted for 52,900
books at a transaction cost per title granted
at 69 cents per title. Correct?
That was a partial cost.
They were all partial costs. Correct?
Yes.
So there was a tremendous difference in the

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copyright permission for open access.
Yes.
This article was written in 2005. Has a
similar article with updated statistics been
published since then?
Not to my knowledge.
Are you intending to do that or is someone at
Carnegie Mellon intending to do that?
As far as I know, we don't have it on our
list.
Again on Page 58 under looking ahead, there's
a discussion about meetings between I take it
the Million Book Project personnel and
Carnegie Mellon legal counsel.
Do you see that?
No.
H says initial meetings with Carnegie Mellon
legal counsel in October of 2002 led to the
preparation -See that?
Yes.
There's a sentence that says the understanding
was that if we designed and followed a
rigorous work flow approved by legal counsel
and documented our efforts, then we could

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Page 98

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digitize and provide Web access to books
without permission under certain conditions
(for example, if the publisher had gone out of
4
business or we could not ascertain who owned
the copyright to a work).
5
6
We agreed that if we digitized a
7
book and made it Web-accessible without
8
permission and the copyright owner then
9
contacted us, we would remove that book from
the Web at the owner's request.
10
11
However, in May, 2003, university
12
legal counsel changed their minds and took a
13
more conservative approach; no permission, no
14
digitization and access. They are now
15
reconsidering this decision.
16
To your knowledge, has that decision
17
made in May, 2003, been changed?
18 A. No.
19 Q. So the current status is no permission, no
20
digitization and access?
21 A. Yes.
22 Q. The last paragraph on Page 58 says invited by
23
the OITP, which apparently stands for the
American Library Association Office of
24
25
Information Technology Policy --

Page 100

1
We all agreed that though the
2
per-publisher approach of the MBP is
3
consistent with the vision of the Universal
4
Library Project, the approach is artificial in
5
terms of what libraries typically do in
6
regards to digitizing collections.
7
Were you part of that agreement?
8 A. No.
9 Q. SO were you aware that the ALA OITP lobbyists
10
did not want you to argue to Congress based on
the transaction cost of 69 cents per title
11
12
that had been achieved in the Million Book
13
Project?
14
MR. McGOWAN: Objection. Misstates
15
the document.
You may answer.
16
MS. ZACK: I asked whether she was
17
aware of it.
18
19
MR. McGOWAN: That's not what the
20
statement was. It's still been misstated.
21
You may answer.
22
THE WITNESS: I don't know what the
23
question is, so I don't know how to answer.
24 BY MS. ZACK:
25 Q. Denise Troll --

Page 99

1
2A.

Page 101

1
2

Correct?
Y~.

3 Q. And the American Library Association is a
4
trade association for libraries. Is that
5
ri~?
6A. Yes.
7 Q. And the OITP is an arm of the ALA. Is that
8
correct?
9A. Yes.
10 Q. It says invited by the OITP, I presented the
11
results of Carnegie Mellon's copyright
12
permission research to ALA congressional
lobbyists in November, 2004.
13
14
Did you participate in that?
15 A. No.
16 Q. The lobbyists responded that the per-publisher
17
approach used in the MBP which reduced the
18
transaction cost to 69 cents per title would
19
not persuade Congress that acquiring copyright
permission is prohibitively expensive under
20
21
the current copyright regime.
22
The transaction cost of the
23
per-title approach taken in the Posner
24
project, $78 per book, is more likely to be
25
persuasive and yield changes in public policy.

3
4
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6A.
7 Q.
8A.
9 Q.
10 A.
11 Q.
12

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A.
Q.

A.
Q.

This paragraph says that I, meaning
Denise Troll Covey, presented the results to
this ALA group.
Did she ever report back to you
about this discussion that she had?
Probably.
I'm sorry?
Probably.
You don't have any recollection of it?
No.
Did you participate in strategy discussions
about the best way to persuade Congress to
change copyright laws?
Yes.
And as part of those strategy discussions did
you discuss whether or not the transaction
costs of the Million Book Project should be
highlighted or not?
I don't recall.
Well, is there some reason why in your report
filed in this case you never mentioned the 69
percent per-title transaction cost?
MR. McGOWAN: Objection.
Argumentative. Percent is incorrect.
You may answer,

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Page 104

Page 102

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THE WITNESS: But the cost sheets -We did provide cost sheets as part
of our report. Right?
BY MS. ZACK:
Q. Well, your report, Pages I through IS, does
not mention a 69 cent transaction cost.
A. Correct.
Q. Is there some reason why you left that out?
A. Advice of counsel.
Q. Are you talking about Durie Tangri?
A. I'm not certain why we left it out.
Q. There's some discussion in here about why it's
inefficient to seek permission for publishers
across all books, and can you explain to me
why based on the Million Book Project it's
more efficient to seek permission from a
publisher for all his books why you wouldn't
continue to do that?
MR. McGOWAN: Objection. Vague.
You may answer if you followed that.
THE WITNESS: We are not engaged in
any digitization project in the U.S.
BY MS. ZACK:
Q. So since the publishing of this article in
2005 you have not since then sought to obtain

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permission from U.S. publishers?
No, we have not.
Is there a reason why you haven't chosen to
seek additional permission?
We're doing other things.
SO you did not expand the Million Book Project
based on these results and try to get
additional permissions from U.S. publishers on
a per-publisher basis?
No.
Referring you back to your report -Yes.
-- on Page 12, Paragraph 38 says on balance,
therefore, rights clearance poses significant
obstacles to furthering the public good
through digitization. Relying on the random
sample study-By that do you mean the feasibility
study?
Yes.
-- relying on the random sample or feasibility
study as the most statistically reliable -Why are you saying that that study
is the most statistically reliable as between
the Posner study, the Million Book Project

study, and the feasibility study? Why is the
1
2
feasibility study the most statistically
3
reliable?
4 A. It was a random sampling of the books in the
Carnegie Mellon University library's
5
6
collection.
7 Q. A random sample of -8A. The titles.
9 Q. It was a random sample of 277 works.
10 A. Correct.
11 Q. And you consider that statistically reliable?
12 A. The statisticians at Carnegie Mellon
13
University advised us that it was
14
statistically reliable.
15 Q. Based on that study which was conducted in the
16
period of time of what, 2001 to 2002?
17 A. Yes.
18 Q. It says copyright clearance research indicates
19
that for approximately one-third of the books,
20
rights clearance either cannot occur at all or
21
will not be attempted, et cetera.
22
Haven't your methods for locating
23
copyright owners improved through your
24
experiences in 2001?
25 A. Yes.
Page 105

Page 103

A.
Q.
A.
Q.

A.
Q.
A.
Q.

A.
Q.

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MR. McGOWAN: Objection. Vague.
BY MS. ZACK:
Q. Have they?
A. I believe so.
Q. And hasn't, frankly, the public information
available improved with respect to locating
persons in general?
MR. McGOWAN: Objection. Vague.
I'm also-MS. ZACK: Wouldn't you agree that
between 2001 and currently, 2012, it's a lot
easier to find people?
MR. McGOWAN: Same objection.
You may answer.
THE WITNESS: Yes.
BY MS. ZACK:
Q. SO would you agree that the results of your
searches in 2001 would not be particularly
pertinent to searches done in the period after
201O?
A. No.
Q. You wouldn't agree?
A. No.
Q. You think the numbers would still be the same?
A. More or less.

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Page 106

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Q.

But you haven't done any searches in the
period after 2005 you're saying. Right?
MR. McGOWAN: Asked and answered.
You may answer.
BY MS. ZACK:
Q. Just to clarify, since 2005 Carnegie Mellon
has not engaged in any efforts to locate
copyright owners pursuant to any studies in
the U.S. Correct?
A. We haven't done any large projects.
Q. And you've been a librarian for many years.
Correct?
A. Yes.
Q. And the switchover to digital media, when
would you say that that primarily occurred?
MR. McGOWAN: Objection. Vague.
Lacks foundation.
You may answer.
THE WITNESS: IIeft the profession
and worked as a professor of English for a
number of years.
When I came back from that jaunt
through the agency of having gotten a master's
of business administration, I found the field
to be in the beginning of what has been a

1
2
3
4
5
6
7
8
9
10

profound change, a change so profound that my
boss, the provost, has called the library the
most changed place on the campus.
BY MS. ZACK:
Q. Uh-huh. And in 1999 when you attempted to get
other libraries to engage in a digitization
project, they didn't yet have the vision to do
so. Right?
A. Right.
Q. And so would you agree that it was sometime
after 1999 that other librarians came to your
view that digitization was the wave of the
future?
A. It was excruciatingly slow.
Q. Right. And when do you think that there was
significant momentum among other libraries
other than just Carnegie Mellon which is a
university with a mission in line with
digitization?
A. The Digital Library Federation was active for
a number of years from around the time I came
to Carnegie Mellon -- well, before I came to
Carnegie Mellon, up until about three years
ago, and it was about three years ago that the
Digital Library Federation members concluded

Page 108

that the job of making most libraries see that
the future of libraries is digital had been
2
accomplished.
3
4 Q. So you're talking about 2009?
5A. Approximately.
MS. ZACK: All right. I don't have
6
anymore questions. Thank you very much for
7
your time.
8
MR. McGOWAN: Very good.
9
10
Joanne, the court reporter is asking
11
what you would like by way of transcript. I
12
don't know if you heard that.
13
MS. ZACK: Yeah. I'm sorry. I
14
would like a rough and then I will -15
I've got to go back and look at the
16
various options in terms of how quickly the
delivery is, but I'll E-mail somebody about
17
that. Is that all right?
18
THE COURT REPORTER: Yes.
19
20
MS. ZACK: All right. Thank you
very much.
21
MR. McGOWAN: Very good. I'll see
22
you in New York on Friday.
23
24
MS. ZACK: Okay. Have a good
25
flight.

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Page 107

II

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MR. McGOWAN: Take care.

3

(The proceedings were concluded at 1:38 p.m.)

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Page lID
I COMMONWEALTH OF PENNSYLVANIA

Page 112
I

ERRATA SHEET

2 COUNTY OF ALLEGHENY

2

IN RE: AUTHORS GUILD, ET AL. V. GOOGLE, INC.

3

3

DATE: MAY31,2012

4 Notary Public in and for the Commonwealth of

4

PAGE LINE

5 Pennsylvania, do hereby certifY that the witness,

5

--

--

6 GLORIANA ST. CLAIR, was by me first duly sworn to

6

--

--

7 testifY to the truth; that the foregoing deposition

7

--

--

8 was taken at the time and place stated herein; and

8
9

--

--

10 stenographically by me and then reduced to printing

10

--

--

II under my direction, and constitutes a true record of

11

-12 - 13 - 14 - 15 - -

------

16 witness.

16

--

--

17

17

--

--

I, G. Donavich, CRR, RPR, a Court Reporter and

9 that the said deposition was recorded

12 the testimony given by said witness.
13
I further certifY that the inspection, reading
14 and signing of said deposition were not waived by

IS counsel for the respective parties and by the
I further certifY that I am not a relative or

18 employee of any of the parties, or a relative or

-- --

18

-- -19 - - - 20 - - - -

19 employee of either counsel, and that I am in no way
20 interested directly or indirectly in this action.
21

CORRECTION AND REASON

IN WITNESS WHEREOF, I have hereunto set my hand

21

22 and affixed my seal of office this 5th day of June,

22

23 2012.

--

--

23

24

-- --

24

25

Notary Public

25

(DATE)

GLORIANA ST. CLAIR

Page III
1

ACKNOWLEDGMENT OF DEPONENT

2
3
4

I have read the foregoing transcript of
my deposition and except for any corrections or

5

changes noted on the errata sheet, I hereby

6

subscribe to the transcript as an accurate record

7

of the statements made by me.

8

9
10

GLORIANA ST. CLAIR

11

12
13

SUBSCRIBED AND SWORN before and to me
this _ _ day of

,20_

14
15
16
17

NOTARY PUBLIC

18
19
20

My Commission expires:

21
22
23
24
25

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Page 110
1

ACKNOWLEDGMENT OF DEPONENT

2

3

I

have read the foregoing transcript of

4

my deposition and except for any corrections or

5

changes noLed on the errata sheeL, I hereby

6

subscribe to the transcript as an accurate record

7

of the statements made by me.

8

Ii

~

•

O
r1f7i[U~J

9

10

GLORIANA ST. CLAIR

11
12
13

SUBSCRIBED AND SWORN before and to me
this

day of

14
15
16
NOTARY PUBLIC

17

18
19
20

21
22
23

24
25

My Commission expires:

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--_..-._--------------------,
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1

ERR A T ASH E E T

2

IN RE:

AUTHORS GUILD, ET AL. V.

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MAY 31,

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2012

CORREc'nON AND REASON

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A-782
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EXHIBIT 37

A-783
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------x

The Authors Guild, Inc., Associational Plaintiff,
Betty Miles, Joseph Goulden, and Jim Bouton,
individually and on behalf of all others similarly
situated,
Case No. 05 CV 8136-DC
Plaintiffs,

v.
ECFCase

Google Inc.,
Defendant.
-------------------------------------x
REPORT OF PROFESSOR DANIEL GERVAIS
A.

INTRODUCTION AND BACKGROUND

1.

I have been retained by Plaintiffs as an expert on issues of intellectual property,

and collective licensing of intellectual property.
2.

I am FedEx Research Professor of Law at Vanderbilt University Law School and

Director of the Vanderbilt Intellectual Property Program.
3.

I am an expert in the field of intellectual property law. I have taught intellectual

property law at various institutions in the U.S., Europe, and Canada. I have edited or contributed
to 33 books related to intellectual property; and have written publications on intellectual property
law for journals around the world, including the Journal of the Copyright Society of the USA (my
article won the Charles B Seton Award in 2002-03), Columbia Journal ofLaw & the Arts,
Fordham Law Review, Cardozo Arts & Entertainment Law Journal, European Intellectual
Property Review, American Journal ofInternational Law, Chicago-Kent Law Review, Vanderbilt
Journal of Technology and Entertainment Law and the Journal ofIntellectual Property Law. I

have been cited in a decision by the Supreme Court ofthe United States (Golan v. Holder, 2011),

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and in decisions by many other courts. A recent article was republished in Intellectual Property
Law Review (2011) as one of the best intellectual property articles of201 O.

4.

One of my special interests is in "collective management" of copyright, meaning

how aggregations of individual copyrights are legally protected, licensed, and marketed.
authored the first chapter of a 2010 book I edited on this subject, entitled "Collective
Management of Copyright: Theory and Practice in the Digital Age."
5.

In January 2011, I gave the keynote talk at an event on collective management of

copyright organized by the Kernochan Center for Law, Media and the Arts at Columbia Law
School. An updated version of my presentation was published under the title "The Landscape of
Collective Management."}
6.

Prior to my teaching career, I served as Head of the Copyright Projects Section at

the World Intellectual Property Organization (WIPO). In that capacity, I was asked to help
establish new, or improve the functioning of existing, Collective Management Organizations
(CMOs) in various countries around the world.
7.

I also served as Deputy Secretary General of the International Confederation of

Societies of Authors and Composers, the largest association of copyright collectives in the world;
and as Vice-President of Copyright Clearance Center, Inc., based in Danvers, MA, during which
time I was also Deputy Chair of the International Federation of Repro graphic Rights
Organizations (lFRRO), a worldwide association of CMOs, specializing in reprography
(photocopying and digital reproduction of printed content). I have spoken at over 130 academic,
professional and other conferences and events, discussing various issues related to intellectual
property, including copyright law of the United States, international copyright law and the
TRIPS Agreement.
}24:4 COLUM-VLA J. L & ARTS 423-449 (2011).
2

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8.

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I also serve as Editor-in-Chief of the Journal of World Intellectual Property,

published jointly by John Wiley & Sons (New York) and Blackwell Publishing (Oxford, UK).
9.

My complete curriculum vitae is attached here to as Exhibit A. The facts and data

I considered in forming my opinion are listed on Exhibit B. I have not testified as an expert at
trial or by deposition in the last four years. I am being compensated for my time at the rate of
$400 per hour.

B.

MY OPINION

10.

It is my understanding that Google has engaged in the digital copying of millions

of books in libraries, the distribution of digital copies of these books to libraries, and display of
"snippets" from these books in search results. I have been asked my opinion (a) whether
collective licensing markets will continue to develop for the digital uses of books and (b)
whether unrestricted and widespread conduct of the type engaged in by Google will harm the
development of such markets. As I discuss in greater detail below, in my opinion, the answer to
each of these questions is the affirmative.
11.

I believe that, if Google's uses are determined not to be fair uses, the market

would intervene and one or more CMOs (with proper authorizations from right holders) would
license Google (and potentially others) to scan, distribute and display copyrighted works. In fact,
as discussed further below, the type of copyrighted content that Copyright Clearance Center, Inc.
presently licenses is essentially printed content, much of the same nature as the material scanned
by Google. The rights involved are also essentially the same. In other words, this type of
licensing is already a reality.
12.

Collective management is already indispensable for many categories of content

creators and for many types of copyright uses, including online uses. The value of copyright

3

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rights to authors and other copyright owners is often monetized not in individual transactions
(authorizing the use of one or more specific works) but in licensing their rights in aggregated
form, as part of a "repertory" of works or rights. This allows markets for those repertoires of
works and rights to form and to operate, allowing access to and uses of copyrighted material
while compensating creators for their work. Collective licensing markets have often developed in
response to new technologies and uses and will continue to develop for digital uses of books
unless widespread copying of entire books is permitted as a fair use, thus discouraging the
development of such collective licenses.
13.

Making books and other copyrighted works available online is desirable both for

authors and readers. Technologically, it may be inevitable. It is likely to become a major form of
access to content. It may also facilitate access by people with disabilities.
14.

Allowing the market, or Congress, to develop a collective licensing system for the

types of uses that Google has been making would not prevent these uses. Instead, it would
compensate those who created and published the content and whose ability to earn a living often
depends on being able to monetize online uses. The actual scope of the uses could be taken into
account in determining appropriate rates. Collective management solutions can be applied to
manage this type of licensing transaction, as the existence of successful similar collective
systems demonstrates.
15.

An argument that collective management is not possible or desirable in this case

because there are many different types of books is negated by the existence of successful
licensing systems for more than two centuries that have combined works of a similar form but
with different content into repertoires. Collective Management Organizations license old and
new works. Today, existing collective rights music organizations license everything from Philip

4

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Glass to the latest hip-hop hit. CMOs typically pay authors and other right holders based on
actual usage.
16.

Collective licensing was the thrust of the proposed settlement in this case. The

proposed Book Rights Registry was a form of collective management with a repertory license
allowing Google to use millions of titles. The Registry would have maintained a database of
rights information, received on behalf of the rightsholders the agreed payments from Google, and
distributed those payments to rightsholders who had registered their works with the Registry.
17.

It is my opinion that a similar type of collective management system, most likely

one requiring that rightsholders opt their books in to participate in collective management, would
develop here if some or all of Google's uses are found not to be fair. Further, it is my opinion
that, if conduct such as Google's is permitted and becomes widespread, this will harm or impede
the development of such a collective management model.

C.

BASES FOR THE OPINION
(1)

18.

The Emergence and Basic Operations of Copyright Management
Organizations

Collective management reportedly emerged around 1777 in France, when authors

of theatrical plays formed an association to license their plays? In the United States, collective

In 1838, Honore de Balzac and Victor Hugo established the Society of French Writers, (known in
French as Societe des gens de lettres. See online: <http://www.sgdl.org/> (last visited: March 28,2012),
which was mandated with the collection of royalties from print publishers. A net of authors' societies,
shaped by the cultural environment of each country, slowly spread throughout the world. Id. at 10.
Around the same time, the Universal Theatrical Society was established.
See www.answers.comltopic/firmin-g-rnier (last visited: March 28, 2012).
Both of these initiatives led to the founding congress in 1926 of the Intemational Confederation of
Societies of Authors (CISAC). See www.cisac.org (last visited: March 28,2012).
The founding members identified the need to establish both uniform principles and methods in each
country for the collection of royalties and the protection of works, and to ensure that copyright was
protected throughout the world. (By "world", I am referring only to the Westem World. This is inclusive
of the Anglo-Saxon and droit d' auteur traditions of copyright.)
Today, CISAC has 232 members in 121 countries. See
http://www.cisac.org/CisacPortallinitConsultDoc.do?idDoc=22994 (last visited: March 28,2012).

2

5

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management developed as technology and markets made possible the widespread and dispersed
infringement of copyrights. Broadcasters were considered "pirates," until their use of music was
licensed by performing rights organizations (PROs). ASCAP, BMI and SESAC are the three
PROs identified as such in 17 U.S.C. § 101. The first PRO, the American Society of Composers
and Publishers (ASCAP), was formed in 1914.
19.

Collective management provides a number of advantages in licensing uses of

copyrights. CMOs are a single-source for the licensing of specific uses, thereby eliminating the
need for individually negotiated licenses from each copyright owner. By reducing the
transaction costs associated with enforcing, on the one hand, and licensing, on the other, they
help convert widespread infringement into markets. This benefits authors and users.

(2)
20.

Collective Management in the Copyright Act

The Copyright Act regulates CMOs in the United States in a variety of ways. For

example, PROs are named in section 101. Section 115 establishes a compulsory license for
making and distributing phonorecords. When certain uses are determined by Congress to be
desirable but subject to a payment to authors, Congress may establish a compulsory license. Such
a system is now in place to set rates for non-interactive transmissions of sound recordings. 3
21.

A brief review of the legislative history might be helpful to illuminate the issue at

22.

The initial focus oflegislative action was the collective management of music. In

hand.

the 1897 Act, Congress prohibited unauthorized public performances generally.4 However, in
the Copyright Act of 1909, Congress limited the prohibition to those done "for pro fit." 5

For 2010, CISAC members reported collections of$9.9 billion. See id.
Section 114 and chapter 8 of Title 17 of the United States Code.
I d.
5Id.

3
4

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Not surprisingly, within a few years of the 1909 Act's enactment, the need to

define "for profit" emerged. 6 In Herbert, the Supreme Court, in the words of Justice Holmes,
explained that the notion should be defined fairly broadly:
The defendants' performances are ... part of a total for which the public pays, and
the fact that the price of the whole is attributed to a particular item which those
present are expected to order, is not important. It is true that the music is not the
sale object, but neither is the food, which probably could be got cheaper
elsewhere. The object is a repast in surroundings that to people having limited
powers of conversation or disliking the rival noise give a luxurious pleasure not to
be had from eating a silent meal. If music did not pay it would be given up. If it
pays it pays out of the public'S pocket. Whether it pays or not the purpose of
employing it is profit and that is enough. 7
24.

The Court thus established the need for the public performance licenses that

ASCAP and now the other PROs provide. 8 This is a good example of infringement preceding
the establishment of a working collective licensing system.
25.

When Congress enacted the Copyright Act of 1976,9 it did away with the "for

profit" language of the 1909 Act. However, Congress also expressly exempted from copyright
liability "the public reception of [a transmission embodying a performance of a work] on a single
receiving apparatus" where no separate charge was made to see or hear the transmission. to
26.

In an effort to adapt the statute to technological change, in the Digital

Performance Right in Sound Recordings Act of 1995, Congress enacted a limited digital public

See Herbert v. Shanley Co., 242 U.S. 591 (1917) [Herbert]; John Church Co. v. Hilliard Hotel Co., 221
F. 229 (2" d Cir. 1915). The named plaintiff in Herbert v. Shanley Co., Victor Herbert, was a founding
member of ASCAP, and brought the case as a test case to establish a broader scope for the right of public
performance.
7 See Herbert, id.
S Exempted from license fees in the 1909 Act were certain charitable performances and for jukeboxes.
th
9 Act of October 19, 1976, Pub. L. No. 553, 94 Cong., 1st Sess., 90 Stat. 2586, codified as amended at 15
U.S.C. §§ 1-1332 (2005).
10Id. at § 110(1), (2), (3), (4), (6), (8), (9), codified as amended 17 U.S.c. § 110(1), (2), (3), (4), (6), (8),
(9) (2005).

6

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perfonnance right for sound recordings, contained in 17 U.S.C.§114. II Congress then provided
a compulsory license for non-interactive transmissions - that do not enable a member of the
public to receive, on request, a transmission of a particular sound recording or a program
specially created for the recipient. 12 The Act also tasked the U.S. Copyright Office to designate
a CMO to administer the license, which it did, naming SoundExchange, Inc. 13
27.

The 1995 amendments did not follow the antitrust regulation model that applies to

ASCAP and BMI. Instead, Congress opted for a more specialized and modem fonn of regulation
of collective management. Under this new regulatory model, the Act gave the Library of
Congress (of which the Copyright Office fonns part) the authority to set rates and licensing
conditions. The Act also set a distribution key according to which SoundExchange distributes
50% of the revenues to the sound recording copyright owners, 45% to the featured artists, and
5% to an independent administrator to distribute to non-featured artists and vocalists. Licensing
rates are set by Copyright Royalty Judges (CRJS)14 appointed by the Librarian of Congress for
six-year tenns.
(3)
28.

The Copyright Clearance Center

A different, voluntary model emerged when Copyright Clearance Center, Inc.

("CCC") was fonned in 1978 as a New York not-for-profit corporation. Publishers and authors
register their works with the CCC and set the fee for use of their works in CCC's several per-use
license services. CCC also offers annual repertory licenses in both the business and academic

11 104 Pub. L. No. 39,109 Stat. 336 (1995).
1217 U.S.c. §114(d)(2), (f)(2) (2009); see also Bonneville Int'l Corp. v. Peters, 347 F.3d 485, (3d Cir.
2003) (affmning Copyright Office's decision to require a compulsory license for simultaneous
transmission of a radio station's broadcast through the Internet).
13 See 17 U.S.C. § 114(g)(2); and Notice of Designation As Collective Under Statutory License filed with
the Licensing Division of the Copyright Office in accordance with Copyright Office regulation 270.5(c),
37 C.F.R. § nO.5(c).
14 17 U.S.c. §§ 801-805 (2009).

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markets. For the year ended June 30, 2011, CCC reported revenues in excess of$238 million
and payments to right holders in excess of $171 million. IS According to its website, CCC
licenses business users, under one or more of its repertory or per-use licenses, the right to
photocopy an article from a newspaper, magazine, book, journal, research report or other
published document; e-mail an online article or PDF; post digital content on their corporate Web
sites, intranets and extranets; print out Web-based and other digital content onto paper and
overhead slides; republish content in a newsletter, book or journal; and scan printed content into
digital form when an electronic version is not readily available. 16 For academic institutions,
again under one or more of its repertory or per-use services, it licenses the right to photocopy
material from books, newspapers, journals and other publications for use in coursepacks and
classroom handouts; use and share information in library reserves, interlibrary loan and
document delivery services; post and share content electronically in e-reserves, course
management systems, e-coursepacks and other e-Iearning environments; distribute content via email or post it to their intranets, Internet and extranet sites; and republish an article, book excerpt
or other content in their own books, journals, newsletters and other materials. 17
(4)

29.

Other Collective Management Organizations

Today, CMOs in the United States license: (a) musical works (primarily the three

PROs and Harry Fox Agency (HFA) which licenses mostly the reproduction of musical works);
(b) sound recordings and the artists' performances they contain (Sound Exchange); and (c)
photocopying and digital reprography (Copyright Clearance Center, Inc. or CCC), to name the

15 The difference between the two numbers includes but is not all a service charge. Due to the time period
required to process usage data, the 2011 distributions were mostly of2010 collections which were
significantly lower than 2011 collections. See lillI2:Lbmnualr~ort.copyright.comlmanagement-summary­
financial-data.
16 See www.copyright.com.
17 See id.

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most well-known organizations. In addition, a fonn of collective management is used to collect
and distribute residuals to certain actors, directors and screenwriters by the audiovisual guilds.
30.

CMOs typically operate as follows: Once established (sometimes an

authorization is required to operate as a CMO, as was the case for SoundExchange I8 ), a CMO
needs the authority to license a repertory of works, perfonnances or recordings and/or to collect a
license fee. The authority may be granted by law, as when a compulsory or statutory license is in
place l9 , or by contracts with individual right holders or other CMOs. With that authority, a
CMO can license and/or collect fees on the basis of rates (also known as "tariffs"). Those rates
may be set by a governmental authority such as the Legislative Branch as in section 115 of the
Copyright Act or in section 114 by the Copyright Royalty Judges for SoundExchange, or by the
Judiciary Branch, such as the federal judges operating as rate courts under the ASCAP and BMI
consent decrees.z° At other times, the rates are set by rightholders, as is the case with CCc. 21

See infra note 13.
According to the US Copyright Office, there are eight compulsory and statutory licenses in the
Copyright Act (the Copyright Office also notes that the "terms 'compulsory' and 'statutory' are
interchangeable"):
Section 111 - Statutory License for Secondary Transmissions by Cable Systems
Section 112 - Statutory License for Making Ephemeral Recordings
Section 114 - Statutory License for the public performance of Sound Recordings by Means of a Digital
Audio Transmission
Section 115 - Compulsory License for Making and Distributing Phonorecords
Section 118 - Compulsory License for the use of Certain Works in Connection with Non-Commercial
Broadcasting
Section 119 - Statutory License for Secondary Transmissions for Satellite Carriers
Section 122 - Statutory License for Secondary Transmissions by Satellite Carriers for Local
Retransmissions
Section 1003 - Statutory Obligation for Distribution of Digital Audio Recording Devices and Media
(Chapter 10).
See www.copyright.gov/licensingl
20 See, e.g., United States v. Am. Soc'y of Composers, Authors and Publishers, No. 41-1395, 2001 WL
1589999, (S.D.N.Y. June 11, 2001); and Michael A. Einhorn, Intellectual Property and Antitrust: Music
Performing Rights in Broadcasting, 24 COLVM.-VLA J.L. & ARTS 349, 361 (2001).
21 Sometimes the price is set by a governmental authority without the need to seek a voluntary agreement
first.
18

19

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Having thus obtained the authority to license and/or collect fees, the CMO will

normally proceed to sign agreements with users that provide for the collection oflicense fees and
usage data. For example, radio stations (broadcasters) provide logs (often in digital form) of the
recordings they used to the PROs in an agreed format. While a radio station may use computer
logs to report the recordings used, for other types of users (hotels, bars, restaurants), it is difficult
to require 100% reporting. Sometimes statistical surveys are used instead. For example, a
number of (representative) users may be surveyed for a specific period oftime, and the data thus
gathered will then be extrapolated to the class of users concerned using statistical regressions and
other similar models.
32.

The CMO will process such data and apply them to distribute the funds to

copyright holders. 22 Identification data (metadata) is generally used to match usage data reported
by users or generated by the CMO to specific works, recordings or perfonnances and the right
holders therein.
(5)

33.

Collective management is a major part of copyright in practice

As I see it, in practice there are six ways in which copyrights are currently treated

in the United States:
(A)

Full individual exercise of rights by the copyright owner

(B)

Voluntary collective management of rights by the copyright owner

(C)

Presumption/designation of uses by statute

(D)

Statutory limitations on damages to the applicable CMO rate

(E)

Statutory or judicial compulsory licensing

Payment to foreign copyright holders is often done through local CMOs in each territory on the basis of
a contract usually referred to as a Reciprocal Representation Agreement. Worldwide databases of
identification data have been created by CISAC and IFRRO. This allows their members to identify
foreign works, performances and recordings licensed to them under those reciprocal representation
agreements.
22

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(F)
34.

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Exceptions allowing uncompensated uses (such as fair use)

In a full individual exercise scenario (level A), a user must contact the copyright

owner to obtain permission to make uses. Examples would be a book author's contract with a
publisher or an author allowing the making of a derivative work, such as a film made based upon
a novel. This often entails significant transaction costs (negotiation, etc.).
35.

Then there are four levels of right at which the author loses the ability to say no to

certain uses by others but retains a right to be paid for such uses. Such is the case when an author
voluntarily joins a CMO (level B) because CMOs in most cases will not prohibit the use of a
work in their repertory?3
36.

At level C, a CMO may be designated by governmental authorities to manage a

right. This system is applied in the United States under section 114 (SoundExchange is the
designated CMO).
37.

Another option (level D) is to statutorily limit the damages available for certain

uses. A number of options under consideration for orphan works resemble this option.

38.

24

The next level is a compulsory license (level E). This may be managed by a

private CMO (for example Harry Fox Agency under the section 115 compulsory license). A
governmental authority can also be designated for this purpose. The U.S. Copyright Office
directly administers royalty fee collections from cable operators for retransmitting television and
radio broadcasts (under 17 U.S.C.§ 111), from satellite carriers for retransmitting non-network

23 Often they simply cannot or should not, as would arguably be the case with ASCAP and BMI under
their respective consent decrees.
24 See http://www.copyright.gov/orphanJ (last accessed March 28,2012). One ofthe proposals most
discussed would limit damages (conditions apply) to a "reasonable compensation" mutually agreed by
the owner and the user or, failing that, be decided by a court and the suppression of statutory damages.
My point is that if a collective rate was in place, it would likely inform the reasonable compensation
determination by a court.

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and network signals (17 U.S.C.§ 119), and from importers or manufacturers for distributing
digital audio recording products ((17 U.S.C.§ 1003).25
39.

At level F, a statute takes away from the copyright owner the right to receive

remuneration for certain uses. Fair use is such a situation.
40.

I believe that if Google's uses are not determined to be fair uses, the market, or

Congress, will develop a collective licensing system for the types of uses that Google has been
making so that Google would not have to negotiate a transactional license for each book or other
work it wishes to use. Such an approach would compensate those who created and published the
content and whose ability to eam a living often depends on being able to monetize online uses.

(6)

41.

Collective management and the digitization of, and mass access to,
books

Often after a new form of use has emerged, collective management systems are

established to license uses that have been found to be desirable but unauthorized. The purpose of
collective management is not to put roadblocks in the utilization of works but rather to reconcile
the needs of users and authors, to ensure that copyright rights are duly reflected in new fonns of
use that do not constitute fair uses or are otherwise exempt. Using collective management, users
can obtain licenses with limited transaction costs (such as the annual licenses granted by the
PROs and by ccq or at least a single interlocutor. CMOs can also aggregate usage data to
protect the privacy of individuals and the confidentiality of institutional and business users.

See Circular 75: The Licensing Division of the Copyright Office, available at
http://www.copyright.goY/circs/circ75.pdf(last accessed March 28,2012).

25

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CONCLUSION
42.

Allowing practices li.1.<e Google's as fair use may be expected to thwart the

development of coJJective m.anagement systems for the digital USes of books
and book excerpts
that autllOrs and publishers would otherwise likely develop, join or license
others to develop.

Dated: April 2, 2012

Daniel Gervais, P.ll. .

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EXHIBIT 38
FILED UNDER SEAL

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Expert Report of Ben Edelman
Introduction and qualifications
I.
I am an assistant professor at Harvard Business School. My research focuses on
the design of electronic marketplaces including Internet advertising, search engines,
privacy, and information security. I hold a Ph.D. in Economics from Harvard University,
a J.D. from Harvard Law School, an A.M. in statistics from Harvard University, and an
A.B. in economics from Harvard College. Further information concerning my
background and qualifications is provided in my curriculum vitae, which is attached
hereto as Exhibit A.

2.
My experience includes more than 15 years as a computer programmer, in which
time I developed software for my own use, end-user computers, local networks, and web
servers; and administered servers for myself and others. My technical experience
includes efforts to verify the security of other programmers' code including uncovering
shortfalls in others' security systems. I have studied and written about questions of
information security, accidental information revelation, and information distributed more
broadly than online services anticipated. For example, I have personally uncovered
multiple Google privacy flaws, including improper data collection by Google Toolbar as
well as improper data distribution by Google JotSpot. I also found and demonstrated to a
court's satisfaction that an early online video service, iCraveTV, had failed to secure
video contents in the way that it had previously represented to that court.
My academic publications explore a variety of aspects of online business,
3.
including multiple articles considering the difficulty of limiting access to and use of
infornlation systems. A full list of my publications is provided in my curriculum vitae,
which is attached hereto as Exhibit A. Among the publications relevant to questions at
issue in this matter are the following articles: In "Shortcomings and Challenges in the
Restriction of Internet Retransmissions"of Over-the-air Television Content to Canadian
Internet Users," a submission to Industry Canada, I evaluated the difficulty of imposing
certain access restrictions when distributing video material over the Internet. In
"Securing Online Advertising: Rustlers and Sheriffs in the New Wild West," I presented
the challenges of designing online advertising markets to satisfy the requirements of
advertisers, online publishers, and advertising platforms while unauthorized activities
such as advertising fraud are taking place. In numerous articles, I have presented all
manner of online miscreants using information systems in ways their providers did not
intend, did not anticipate, sought to prevent, and/or claimed to seek to prevent.
4.
My teaching assignment currently consists of a HBS elective course called The
Online Economy, which analyzes strategies for all manner of online businesses. The
course includes concerns arising out information security.
5.
I have testified as an expert witness in federal courts, and I have testified to
committees of the United States House of Representative and United States Senate. I
have offered expert testimony in the U.S. District Courts for Michigan and Pennsylvania
and in Utah State Court. A listing of the cases in which I have testified as an expert at
trial or by deposition during the past four years is attached as Exhibit B.
6.

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

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Scope of retention
7.
I understand Google is asserting a fair use defense to the allegations that, without
permission from rights-holders, it digitized millions of in-copyright books from a number
of university libraries, maintains digital copies of those books on its servers, distributed
digital copies of those books to the libraries, and displays on the Internet verbatim
content from the books. In this report, I address and opine on risks of a security breach
exposing widely online the contents of in-copyright books from (a) the scanning, storage
and display of books (or book excerpts) by smaller, less sophisticated entities that, under
an adverse fair use ruling, would be permitted to engage in conduct similar to Google's
Library Project, (b) Google's distribution of digital copies of scanned books to libraries,
and (c) Google's retention and storage of multiple copies of the millions of books it
digitizes in its Library Project.
8.
I conclude that umestricted and widespread conduct of the sort engaged in by
Google would result in a substantially adverse impact on the potential market for books.
9.
If the Google Library Project is found not to be a fair use, then the books could be
digitally copied, distributed and displayed through licenses that include security protocols
and a damages structure for breaches of those protocols. Conversely, if such uses are
deemed permissible without requiring permission from rights-holders -- i.e., if fair use
were to be found here -- then rights-holders will have little or no means to reduce the
security risks identified in this report.
10.

Exhibit C lists the documents I reviewed and sources I considered.

Piracy of books is already a real, not hypothetical problem
11.
The electronic distribution of electronic copies of books, without authorization
from publishers or rights-holders, is already occurring. For example, consider a user
seeking a copy of" American Sniper," the number one bestseller hardcover nonfiction
book according to the New York Times bestseller list dated April 1, 2012. Such a user
might run a Google search for "american sniper mobi" (without quotes), using the word
"mobi" to indicate interest in a ".mobi" book (a popular electronic book file format). The
first, second, third, fourth, fifth, sixth, eighth, ninth, and tenth-listed links all offer or
purport to offer copies of the specified book. I checked these nine links; I found that all
but one confirmed that the book was available and offered a download link or download
instructions. Of the ten links, only one (the seventh) pointed to a site (Amazon) that
charged for access to the book. Of course the book is a top-selling in-copyright
commercial publication; anyone offering no-charge copies is almost certainly doing so
without permission from the copyright holder.
12.
Sites with pirated books fall into several categories. Some sites charge for pirated
book copies, though they do not share the resulting revenues with those who created the
books. Other sites distribute pirated book copies for free. Among sites offering free
book copies, some offer direct web-based downloads, providing pirated book copies
when a user simply clicks to request a copy. Other sites offer links to Bit torrent
".torrent" files that direct a user's computer to other computers from which a desired file
may be copied.

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Similar Scanning Operations Could Allow Book Copies to Be Copied and
Redistributed
13.
If Google' s conduct is found to be a fair use and others engage in similar conduct,
a risk is created of book redistribution through piracy.
14.
If other providers ("providers") scan books, the resulting digital book copies
could enter widespread public circulation via any of several channels. First, pirates could
extract book copies through defects in the security of a provider's systems. Once books
are scanned, the resulting digital files are stored on a server or, more often, multiple
servers. Defects in the access controls of any such server could allow pirates to gain
access to digital book copies. Defects could arise through flaws in the operating system,
database server, web server, or other software run on a provider's servers; such flaws
have been widespread in even the most popular server software. Defects could also arise
through the provider's custom software, which is likely to be less secure because custom
software usually receives a lesser level of scrutiny, testing, and verification than software
that is distributed and used more broadly.
15.
Second, pirates could extract books via errors in the security configuration of a
provider's systems. If even one of a provider's servers lacks a required update or other
security feature, pirates could use that server to obtain the book copies.
16.
Third, pirates could extract books by impersonating provider staff to access
provider systems. Suppose an attacker can obtain the usemame and password of a person
with full access to a provider's book copies. The attacker can log in with that password
to access and copy the provider's book copies. Similar attacks are frequent: For example
Amazon Zappos,l Gawker,2 and Microsoft Hotmail3 suffered similar attacks in 20092011. Even the United Nations suffered a breach of the same type 4 If a single staff
person at a single book provider used the same password for a hacked site and for access
to book copies, then a hacker could use that password to access book copies, copy book
copies to the hacker's own systems, and redistribute book copies further from there.
17.
Fourth, a rogue employee could intentionally redistribute book copies. Rogue
employees gain and exploit privileged access to data despite organizations' efforts to
screen and supervise key staff. Consider the classified US State Department material
distributed by Wikileaks in 2010 - infonnation obtained via a rogue employee. A rogue
employee with access to book copies could intentionally make those copies available to
the public.
18.
Fifth, when books are scanned by a smaller and less sophisticated provider, there
is a particularly acute risk of book contents being accessed and redistributed. For one,
less sophisticated organizations have a reduced capability to design, install, and maintain
suitable web site, database, and related security systems as well as anti-reconstruction
Dominic Rushe. "Zappos Database Hit by Cyberattack." The Guardian. January 16,2012.
Zachary Seward and Albert Sun. "The Top 50 Gawker Media Passwords." Wall Street Joumal- Digits.
December 13,2010.
J Bogdan Calin. "Statistics from 10,000 Leaked Hotmail Passwords." Acunetix. October 6,2009.
http://www.acunetix.comlblog/news/statistics-from-l OOOO-leaked-hotmail-passwordsl .
4 Chloe Albanesius. "Team Poison Hacks UN, Leaks Usemames, Passwords." PC Magazine. November
30,201 I.
I

2

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systems to secure books. Furthermore, less sophisticated organizations have a lesser
ability to screen key staff to prevent data loss through rogue employees, and a lesser
ability to configure security systems to exclude hackers. Thus, if other companies and
organizations follow Google's lead in scanning books, a risk exists that book contents
will be accessed and redistributed.
19.
As set out in the section captioned "A Single Breach Could Cause Devastating
Harm to the Class," one instance of book copying can have large effects. For example, if
numerous companies and organizations scan books, attackers can focus their efforts on
whichever installs the weakest security. Similarly, attackers can take advantage of even a
brief period when a single book provider is insecure (for example, through failure to
properly update a server). Once attackers obtain book copies, they can then redistribute
the copies as desired. If many providers begin scanning and storing digital book copies,
the affected books are only as secure as the least secure provider - so the diligent efforts
of some providers would be undermined by lax security of others.

Breaches in Libraries' Systems Could Facilitate Book Piracy
20.
I understand that the Google Library Project includes providing to its library
partners a full digital copy of the books the libraries allowed Google to scan. Breaches in
the security systems at these libraries could facilitate book piracy.
21.
I have not been informed of all the ways that libraries intend to use the book
contents data they receive from Google, nor have I been informed how libraries intend to
secure that data. But the information currently available indicates that libraries' actions
present a risk of book piracy.
If libraries provide book contents in a way where authorized library users can
22.
access the data, it is likely that some users will attempt to exceed the intended scope of
authorization to access and copy book contents en masse. For example, in July 2011, a
student used MIT library access to download 4.8 million articles and other documents. s
23.
Structural factors also increase the difficulty oflibraries properly securing book
contents. University libraries typically serve myriad users including students, visitors,
and others with limited long-term connection to the library -limiting a library's ability to
establish accountability. Moreover, libraries typically specialize in making information
available rather than in restricting how information may be used. While some libraries
offer electronic resources that are subject to restrictions on use, these restrictions are
typically implemented by keeping the information on the information provider's servers
so that the information provider, not the library, can monitor usage and attempt to assure
compliance. For example, when a library licenses journals and articles and other
documents from the JSTOR digital archive, libraries do not receive full copies of the
articles to store on library servers. Instead, libraries receive secure access to JSTOR
servers, allowing library patrons to access individual documents on JSTOR without ever
receiving the full corpus of all articles JSTOR holds. Access to documents held by
Lexis-Nexis and Westlaw is similar. In contrast, the book contents here at issue would be
stored on libraries' servers without an outside third party to assure and enforce
compliance with access restrictions.
5

United States of America v. Aaron Swartz. Indictment. JulyI4,2011.

4

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24.
The likely uses of digital book copies further exacerbate the risk of copying. A
natural use of digital book copies is to analyze patterns in book text. From the
perspective of a researcher seeking to perform such analysis, it is natural to begin by
copying digital book copies onto a system the researcher controls, allowing the researcher
to run flexible and high-speed searches of those book copies using the researcher's
preferred tools. (In contrast, if the researcher had to run analyses on a server controlled
by the library, the researcher would ordinarily be able to use only those tools the library
provides, and the speed of the researcher's analysis might be constrained by server
capacity and availability.) Crucially, once a researcher copies the data onto his own
system, the library's prior security efforts (whatever they might be) are largely irrelevant.
A researcher might even store digital book copies on a laptop or USB drive, where loss
and theft are particularly frequent. When book copies are processed into text using
optical character recognition, the resulting files can be quite small- making it feasible to
store tens of thousands of book copies on an ordinary laptop or USB drive.
25.
A further risk of book piracy from or via university libraries comes from the
culture of "pranks" enjoyed by many software and engineering students. For example,
the MIT Hack Gallery presents hundreds of hacks including public displays of the Apple
logo, the logo of the Boston Red Sox, and the logos of various movies. 6
26.
In its agreement with the University of Michigan, Google has specifically avoided
responsibility for monitoring how libraries store or use book contents. The University of
Michigan agreement specifically speaks to Google's duty of care over physical books in
Google's custody (including the risk ofloss, damage, pests, fire, theft, and the like)?
However, the agreement offers limited commitments as to the University of Michigan's
duty to keep secure its Digital Copy of the book contents. s For example, Google's
agreement with University of Michigan provides the use of robots. txt as a supposed
"technological measure ... to restrict automated access" to the Digital Copy, but
robots. txt offers no genuine security protection and instead relies on a requester's
compliance with stated restrictions on access. The other provisions of Google' s
agreement with University of Michigan are vague ("reasonable efforts," "cooperate in
good faith to mutually develop methods," etc.). These vague provisions offer
significantly lower protection than Google provides for even its routine business
confidences. 9
Google Itself Is Not Immune to Design Flaws and Security Breaches
27.
Despite Google's considerable resources, Google products and services
nonetheless suffer from design flaws and security breaches which result in information
flowing in ways Google and/or users did not intend.

httJl:/lhacks.mit.edui
Cooperative Agreement between Google Inc. and Regents of the University of Michigan, sections 2.3.1
and 2.7.
8 Cooperative Agreement between Google Inc. and Regents of the University of Michigan, sections 4.4.1-2.
9 For example, the Google NDA presented at httJl:llvalleywag.coml230407/this-nda-never-existed offers
greater protection including greater restrictions on the circumstances in which information can be shared,
greater restrictions on the permissible recipients of such information, and more precise requirements as to
how information must be secured.

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28.
In general, Google faces each of the vulnerabilities detailed in "Similar Scanning
Operations Could Allow Book Copies to Be Copied and Redistributed" above. The
following sections flag specific problems that could occur, as well as noting similar
problems Google has already faced.

Google 's Security Systems are not F ailproof
29.
In other information and distribution services, Google has failed to comply with
its commitments to users and the public. For example, in January 2010, I found and
reported the popular Google Toolbar program - installed on "hundreds of millions" of
computers lO - continuing to track users' browsing (including every web page visited)
even after users had specifically requested that the Toolbar be "disable[ d]" and even after
the Toolbar had confirmed users' request and disappeared from screen. I I The user
browsing at issue was users' most sensitive online activities: reasonable users would
activate the Toolbar's "disable tracking" feature exactly when they sought to engage in
private activities they did not wish Google to track. Google subsequently characterized
its nonconsensual information collection as "an issue,,12 but offered no explanation for
why it collected information users had specifically indicated, and Google had agreed,
should not be collected. Google has paid no compensation to affected users. Neither did
Google promise to undo the error: Google never offered to let affected users identify
themselves so Google could delete their data from its records.
30.
In spring 2010, Google introduced Buzz, a social network for connecting to online
colleagues and sharing information about who is doing what. For users of Go ogle's
email service, Gmail, Buzz shared with the general public the names of the persons
Gmail users corresponded with - information Google had previously indicated it would
keep confidential. Google subsequently faced class litigation for this information breach,
alleging that affected users suffered direct economic loss as a result of Google' s
information revelation. For example, Buzz revealed the persons sending email to and
receiving email from Andrew McLaughlin, who had previously served as a Google
lobbyist, and was working in the White House as deputy Chief Technology Officer of the
United States. Buzz's information revelation indicated that Mr. McLaughlin had engaged
in impermissible activities with his prior employers, in violation of White House ethics
rules. After Buzz-posted information prompted a complaint and an investigation, Mr.
McLaughlin was formally reprimanded for the improper communications. 13 To the best
of my knowledge, Google never offered any compensation to Mr. McLaughlin or other
affected Gmail users.

10 Ian Pau!' "Google Toolbar Tracks Some Browsing Even When It's Not Supposed To." PC World.
January 25, 2010.
http://www.pcworld.comlarticleI187670/google toolbar tracks some browsing even when its not supp
osed to.html .
II Benjamin Edelman. "Google Toolbar Tracks Browsing Even After Users Choose 'Disable'." January
26,2010. http://www.benedelman.orginews/012610-1.html .
12 Barry Schwarz. "Disabling The Google Toolbar Doesn't Stop Google From Tracking You." January
26,2010. http://searchengineland.comldisabling-the-google-toolbar-doesnt-stop-google-from-trackingyou-34438
!3 J. Nicholas Hoover. "White House Reprimands Deputy CTO." Information Week. May 17,2010.
http://www.informationweek.comlnews/govemmentlleadership/224900083 .

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31.
In addition, during February 2012, researchers discovered that Google was
bypassing Safari and Internet Explorer privacy settings to collect data that those browsers
would ordinarily decline to provide. 14 While Google ceased further collection via these
methods, Google has not offered to delete information improperly collected, nor has
Google offered to compensate affected users.
32.
In each of these examples, Google's services worked in exactly the way Google's
engineers designed, in a way any Google engineer could have noticed through
straightforward testing and, in many instances, in a way Google staff specifically
intended. Yet Google lacked authorization for these information collection and
distribution practices.
Rogue Google Employees Could Access or Redistribute Book Contents
33.
In September 2010, news reports revealed that David Barksdale, a senior Google
engineer, had used his privileged position at Google to spy on four teenagers for months.
Because Barksdale was a Site Reliability Engineer at Google, he was able to tap into call
logs for Google Voice (records of phone calls to and from the youths), read the youths'
instant message chat logs, and unblock himself from buddy lists in order to send instant
messages to and from the youths. Barksdale used each of these methods to access the
communications of the affected youths. While Google terminated Barksdale's
employment after these practices became known, Barksdale was able to continue his
practices for months without Google's internal controls noticing what he was doing. IS
Google subsequently admitted that it had previously caught at least one other Google
staff person accessing user data without authorization. 16
Hackers Could Access or Redistribute Book Contents
34.
Outside hackers could access or redistribute book contents. Many hackers
disagree with the public policy embodied in applicable copyright law. For example,
during January 2012, hackers disabled web sites of the U.S. Department of Justice and
FBI, trade associations Recording Industry Association of America and Motion Picture
Association of America, and record labels Universal, BMI, and Wamer Music Group,
when hackers disapproved of possible revisions to copyright law then under discussion in
Congress. I 7 Google's digitized book contents thus could attract hackers seeking to
redistribute notable information.

35.
In January 2010, Google reported a "highly sophisticated and targeted attack on
our corporate infrastructure originating from China that resulted in the theft of intellectual

14 Jonathan Mayer. "Safari Trackers." February 17,2012.
http://cyberlaw.stanford.eduJblog/2012/02/safari-trackers .
15 Adrian Chen. "GCreep: Google Engineer Stalked Teens, Spied on Chats." Gawker. September 14,
2010. http://gawker .com/563 72341 gcreep-google-engineer-stalked-teens-spied-on-chats .
16 Jacon Kincaid. "This Is the Second Time a Google Engineer Has Been Fired for Accessing User Data."
TechCrunch. September 14, 2010.
17 Ingrid Lunden. "SOPA Blackout, Anonymous-Style: FBI, DOJ Sites Downed In Megaupload Protest."
paidContent.org. January 19, 20 12. http://paidcontent.org/article/419-sopa-blackout-anonymous-style-dojriaa-hacked-in-megaupload-protest/.

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34 83

property from Google.,,18 A subsequent analysis by McAfee indicated that hackers had
specifically sought access to the source code for Google systems, and that hackers had
even obtained the ability to alter the source code for Google systems. 19 If Google cannot
keep its own intellectual property secure from attackers, it is plausible to conclude that
Google cannot keep book contents invulnerable to security breaches.
A Single Breach Could Cause Devastating Harm to the Class

36.
A single breach of the systems that store book contents could allow book contents
to become ubiquitous online. In particular, after that single breach occurs, users are
likely to copy andlor share the material en masse, preventing any subsequent efforts to
resecure book contents. For example, on August 4, 2006, AOL posted twenty million
searches performed by more than 650,000 users over a three-month period. Once AOL
realized that posting this information was inadvisable (because it included myriad
sensitive subjects and could be easily linked to individual AOL users), AOL removed the
file from its servers the same week, but the file remains easily available, including on the
web and via BitTorrent. 2o Similarly, Wikileaks in February 2010 began publishing
hundreds of thousands of pages of classified material. The information remains easily
available, including via straightforward Google searches. The information simply cannot
be "unpublished" once it has become publicly available on the Internet.
37.
Thus, ifbook contents become available once - via a breach of book copies
scanned by others, via a breach in libraries' copies of books scanned by Google, or via a
breach of Google' s own systems - the book contents are likely to be available easily and
indefinitely.
38.
However remote one may consider the risk of book contents becoming available,
that risk must be considered in light of the devastating impact to the Class ifbook
contents become available.

Conclusion
39.
If Google's practices of digitally copying, distributing and displaying books
without rightsholder permission are found to be fair uses and become widespread, the
market for books will be adversely impacted by the potential for security breaches.
Conversely, requiring Google and others to obtain the permission of rights-holders before
engaging in such practices could prompt negotiations between rights-holders and those
who seek to digitally use their works, thereby fostering standards for the allocation of the
costs and risks of any harm flowing from such security breaches.

18 David Drummond. Official Google Blog. January 12,2010.
http://googleblog.blogspot.com/20 1% l/new-approach-to-china.html .
19 McAfee Labs. "Protecting Your Critical Assets: Lessons Learned from 'Operation Aurora.'" March
2010. http://www.wired.com/images blogs/threatlevel/20 10/03/operationaurora wp 0310 fnl.pdf.
20 For example, I searched Google for "AOL search torrent" (without quotes) on March 27, 2012. Among
the first ten results, I found six locations where I could download the files. http://gregsadetsky.com/aoldatal presents nine different locations where the data remains available.

8

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Case 1:05-cv-08136-DC Document 1053-7
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Signed April 2 2012,

Benjamin Edelman

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EXHIBIT 40

A-809
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Page 1
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

3

Master File No. 05 CV 8136-DC

- - - - - -x

4

5

THE AUTHORS GUILD, et al.,

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Plaintiffs,

7
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-againstGOOGLE , INC.,

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Defendant.

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- - - -x

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June 1, 2012

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9:55 a.m.

13
14

Deposition of BRUCE S. HARRIS,

15

taken by attorneys for Plaintiffs, pursuant to

16

notice, held at the offices of Milberg LLP, One

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Pennsylvania Plaza, New York, New York, before

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Helen Mitchell, a Shorthand Reporter and Notary

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Public.

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Page 4

Page 2
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2 APPEARANCES:
3
BaNI & ZACK LLC
4
Attorneys for Plaintiffs
15 St. Asaphs Road
5
Ba1a Cynwyd, Pennsylvania 19004
6
BY: JOANNE ZACK, ESQ.
[e-mail]
7
8
DURIE T ANGRI LLP
9
Attorneys for Defendant
217 Leidesdorff Street
10
San Francisco, California 94111
11
BY: DAVID McGaW AN, ESQ.
12
[e-mail]

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BRUCE S. HARRI S,
having been first duly sworn by the Notary
Public (Helen Mitchell), was examined and
testified as follows:
EXAMINATION
BY MS. ZACK
Q Good morning, Mr. Harris.
A Good morning.
Q Would you state your full name for
the record, please.
A Bruce Harris.
Q And where are you employed
currently?
A I'm a consultant, and I'm
self-employed.
MS. ZACK: I'm going to mark as PX
89 your expert report in this matter.
(Expert report by Mr. Harris
marked Exhibit PX 89 for
identification. )
Q Mr. Harris, is PX 89 your report
in this matter?
A Yes, it is.
Q And you've been retained as an

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Harris
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2 expert; is that correct?
STIPULATIONS
3
A That's correct.
IT IS HEREBY STIPULATED AND AGREED
4
Q By Google?
5
A Yes.
by and between counsel for the
6
respective parties hereto, that the
Q And what is your expertise in?
filing, sealing and certification of the
7
A Custom and practice in the
8 publishing industry.
within deposition shall be and the same
9
are hereby waived;
Q Approximately when were you
IT IS FURTHER STIPULATED AND
10 retained?
AGREED that all objections, except as to
11
A I guess two months ago, two and a
12 half months ago.
the form of the question, shall be
13
reserved to the time of the trial.
Q And did you write this report
IT IS FURTHER STIPULATED AND
14 yourself?
15
AGREED that the within deposition may be
A Yes, I did.
16
signed and sworn to before any officer
Q Did you have any assistance?
17
authorized to administer an oath with
A Yes. I wrote the first draft, and
18 Dave helped me.
the same force and effect as if signed
19
and sworn to before the Court.
Q Dave McGowan?
20
A Urn-hum.
21
Q Anyone else?
22
A No.
23
Q So you didn't use any research
24 assistants-25
A No.

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Q -- or anything like that?
MR. McGOWAN: I'll caution you,
Mr. Harris, wait until Miss Zack is
finished with the questions so you don't
speak over each other for the court
reporter.
MS. ZACK: For the sake of the
court reporter.
Q Referring you to Exhibit A to your
declaration, which is your CV or biography, it
says you began your publishing career at the
Crown Publishing Group; is that right?
A Correct.
Q And what approximate years did you
work at Crown publishing?
A From 1960 through 1988.
Q What positions did you hold there?
A I was a promotion assistant,
salesman, marketing manager, sales manager,
director of publishing and publisher.
Q And then your next employment was
where?
A Random House.
Q And that was what approximate

Page 8

Harris
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Q Can you give some examples of
clients?
A Yes. Presently I'm working with
The Cooking Lab, which is a laboratory that was
founded by Nathan Myhrvold, M-y-h-r-v-o-l-d.
We're publishing a book called Modernist
Cuisine. And I'm working for The Anomaly Group,
A-n-o-m-a-l-y, and we're publishing a graphic
novel called Anomaly.
I'm also working for Skyhorse
Publishing here in New York.
Q When you say -- you said when you
were at Crown Publishing you ultimately became
publisher?
A Yes.
Q What does it mean to be publisher?
A The editorial and marketing
functions generally report to the publisher.
Q What are the marketing functions,
generally, in a publishing company?
A Promotion, publicity, subsidiary
rights, sales.
Q Now, have you ever consulted for
authors directly?

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A Yes.
Q What types of things have you
consulted on?
A Mostly non-fiction books.
Q And consulted about what sort of
things?
A By "things" do you mean topics?
Q What did you give them advice
about?
A I gave them advice about whether
they should be published by existing firms or
publish on their own, marketing strategies,
distribution, sales and fulfillment.
Q Are you involved at all in any-you mentioned self-publishing.
A Urn-hum.
Q What do you do as a consultant for
self-publishers?
A Set up a framework where an author
can find distribution, sales and fulfillment
from independent sources.
Q Have you ever advised authors to
publish in e-book form?
A It's part of the publishing

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Harris
years?
A

From '88 to '99.

Q And what positions did you hold

there?
A I was director of publishing, and
then I was president of trade, sales and
marketing.
Q And then your next employment was?
A At Workman Publishers.
Q From which dates, approximately?
A Ninety-nine to 2004.
Q And your positions there?
A I was publisher and chief
operating officer.
Q And your next position?
A I became a consultant.
Q So that was in 2004?
A Yes.
Q Who did you consult for,
generally?
A Publishing companies and authors.
23
Q In what areas?
24
A Basically sales and marketing, and
25 now self-publishing.

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Harris
2 process today.
3
Q E-books?
4
A Yeah.
5
Q Have you ever previously -6 switching topics slightly -- done any work for
7 Google?
8
A No.
9
Q Punazon?
10
A No.
11
Q Any e-book publishers?
12
A No.
13
Q Have you been an expert -- I see
14 in your -- I think it's Exhibit B -- that you
15 were an expert in one other case -- or C -16 another case that's listed; is that correct?
17
A Yes.
18
Q And which case was that?
19
A That was JK Rowling versus RTR
20 Publishing.
21
Q And who did you testify for?
22
A RTR Publishing.
23
Q And what was that case about?
24
A RTR was putting out a Harry Potter
25 encyclopedia, and Miss Rowling objected.

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Q And what was it you talked to her
3 about?
4
A Custom and practice in the book
5 business.
Q And what did you tell her?
6
7
A We were talking about how
8 conditions actually apply in publishing.
9
Q Can you be more specific?
l O A I'm not sure I remember exactly
11 what we discussed.
12
Q How long was the discussion?
13
A About 45 minutes.
14
Q Was it over the telephone?
15
A Yes.
16
Q Did anyone else participate?
17
A I don't think so.
18
Q And you can't remember what you
19 discussed with her other than that it was custom
20 and practice in the book business?
21
A Yeah.
22
Q You've attached to your report
23 various exhibits.
24
A Yes.
Q Are these all exhibits from books
25
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Q And what was the subject matter of
your expert report in that case?
A Whether the publication of a Harry
Potter encyclopedia would hurt her commercial
sales of the Harry Potter books.
Q And what was your opinion there?
A I said it would not hurt the sales
of Harry Potter books.
Q And do you know what the court
ruled in that case?
A They ruled for Miss Rowling, and
she settled the case.
Q You mean while it was on appeal?
A I guess so, yeah.
Q Have you been an expert in any
other matters?
A No.
Q Have you talked to any of the
other experts retained by Google in this case?
A No.
Q Did you speak to Miss Chevalier?
A Yes.
Q When was that?
A That was several weeks ago.

1
Harris
2 that you had some connection to?
3
A No, but they're things that came
4 to hand in the last few months.
5
Q Well, let's look at Exhibit D.
6
A Okay.
7
Q And what is this?
8
A These are the back covers of two
9 books published by Penguin.
10
Q And did you have anything -- were
11 you in any way involved in the publication of
12 these books?
13
A No, they were just in my library.
14
Q So do you have any knowledge about
15 whether anything on these back covers was there
16 by permission or not of the publisher or author?
17
A I don't have any direct knowledge
18 of that.
Q Looking at Exhibit E, which is
19
20 "Weird things customers say in bookstores," did
21 you represent in any way the publisher or author
22 of this book?
23
A No. I had worked for this
24 publisher previously.
25
Q Which publisher is that?

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A The Overlook Press.
Q You worked for them as a
consultant?
A Yes, I did.
Q But with this particular book you
had no involvement?
A No.
Q Do you know whether these
selections were made by permission of the
publisher or author?
A I don't know.
Q Where did you find these?
A This is a little booklet,
promotional booklet, that has been made by
Overlook, which they're going to distribute next
week at the book expo, give out to people -- to
bookstores.
Q So this Exhibit E, if we had the
original rather than a copy, would be in the
form of a booklet?
A Yeah.
Q And it's a promotional booklet
that Overlook, the publisher, prepared itself?
A Yes.

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Harris
MS. ZACK: Well ...
MR. McGOWAN: Objection, lacks
foundation, calls for speculation.
If you want to argue about the
sequencing of questions and objections,
we can do that, but I don't -MS. ZACK: I don't want to argue
that, I just want to say that -MR. McGOWAN: I don't see the
point.
MS. ZACK: I'm just going to say
that all objections -- all you need to
do is say "object to the form." All
objections are preserved other than to
the form, and stating grounds for
objections is a form of coaching.
MR. McGOWAN: And that's
incorrect.
Q Exhibit F, could we tum to that,
please.
A Yes.
Q And this is "Death Will Extend
Your Vacation" by Elizabeth Zelvin; is that
correct?

Page 15

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Q And distributes at -- where?

3

A

Harris
At conventions, places where

4 booksellers gather, and I assume they'll also

5 probably let bookstores have them to give out to
6 their customers.
7
Q So it's an attempt by the
8 publisher of the book to promote the book?
9
A Exactly.
10
Q And sales of the book; correct?
11
A Yes.
12
Q So we would assume that was by
13 permission of a rights holder; correct?
14
MR. McGOWAN: Objection, lacks
15
foun-16
Q Do you have any reason to believe
17 it lacks permission?
18
MR.McGOWAN: Letmefinishmy
19
objection.
20
MS. ZACK: All you need to say is
21
"objection."
22
MR. McGOWAN: I can answer your
23
question if you want me to. You can let
24
me state my objection and not speak over
25
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A Yes.
3
Q Do you know who the publisher is?
4
A I don't know who the publisher is.
5
Q Did you at any time represent
6 Elizabeth Zelvin?
7
A No.
8
Q Where did you find this?
9
A My wife is a mystery writer, and
lOwe go to mystery gatherings, and this was being
11 given out.
12
Q By whom?
13
A By the author.
14
Q So this, Exhibit F -- was this
15 also in booklet form?
16
A Yes.
Q So if we had the original, what is
17
18 Exhibit F would have been a booklet of what
19 looks to be a chapter of the book Death Will
20 Extend Your Vacation by Elizabeth Zelvin; is
21 that correct?
22
A Yes.
23
Q And you received this at a
24 gathering from the author herself?
25
A Yes.

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Did you discuss this with the

A

No.
Did you buy the book?
A No.
Q Exhibit G is a series of pages.
Is this all one handout?
A Yes.
Q Where did you get this, Exhibit G?
A I got this from the publisher.
Q And who is that?
A Clarkson Potter, which is a part
of Crown, which is a part of Random House.
Q And was this also in booklet form
when you received it?
A Yes. It's called a blad.
Q What is blad?
A A blad is when you have
illustrated books, it's a selling tool for
publishers to show booksellers and reviewers
what they're going to be coming out with in a
highly illustrated format.
Q So Exhibit G is what you're
calling a blad, which was in booklet form and

Q

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A This is from the Huffington Post,
and it was a page on Katie Workman's cookbook,
The Mom 100 Cookbook.
Q Did you have any connection to
this cookbook?
A No. I know Katie, but I have no
connection to the book.
Q And do you know who published it?
A Yes. This is published by
Workman.
Q Do you know if this -- what would
you call this page? Would you call this a promo
or-A Yes.
Q Do you know if this promo was in
the Huffington Post by permission of the author
or publisher?
MR. McGOWAN: Objection, compound
and vague.
You may answer.
A I don't know.
Q You don't know?
A I don't know particularly.
Q You're familiar with Google Books?

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2 distributed by the publisher; is that correct?
3
A That's correct.
4
Q What was it a blad for, which
5 book?
6
A Well, it's for all the books that
7 they were publishing this season. I think the
8 next-to-Iast page is a listing of the books. At
9 least some of the books, so they're both
10 cookbooks and style books.
11
Q This page (indicating) -12
A That lists some of them, yes.
Q I can't read the text at the top.
13
14 Can you? Do you know what it says? It's very
15 light.
16
A I think it's an Amphoto -- Watson
17 Guptil -- it's the name of a different division
18 of Clarkson Potter, so it's Watson Guptil,
19 Potter Style and Amphoto.
20
Q And it says "Spring" -- two
21 thousand and -22
A 2012. I think it's 2012. Yeah,
23 these are recent books.
24
Q Referring you to Exhibit H, what
25 is this?

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A Yes.
Q And you're familiar with the fact
that Google Books includes both books from the
Google Partner Program and books throughout the
Google Library Project?
A Yes.
Q The Google Partner Program
includes books by permission of the rights
holder; is that correct?
A Yes.
Q Did you -- I guess you became a
consultant in 2004, is that what you said?
A Yes.
Q At any time -- and your last
employment was at Workman?
A Yes.
Q Any time at Workman did you put
any books into the Google Partner Program?
A I don't recall.
Q Since then have you advised any of
your consulting clients to put books into the
Google Partner Program?
A No.
Q Have you advised any not to put

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books in the Google Partner Program?
A No.
Q Just haven't given them advice
about the Google Partner Program?
A Right.
Q Have you ever talked to anyone at
Google, prior to your retention as their expert,
about the Google Partner Program?
A No.
Q When did you first learn about the
Google Library Project?
A Oh, I think I read about it in the
paper when it was first occurring.
Q Did you ever discuss that with
anyone from Google?
A No.
Q With anyone in the publishing
industry?
A Not that I recall.
Q Are you aware that Google copies
books for its Library Project without
permission?
A Yes.
Q Referring you to the text of your

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report -- well, before I do that, have you ever
used Google Books?
A For myself?
Q Yes.
A Yes.
Q Have you looked at entire chapters
of books in the Google -- in Google book search?
A Occasionally I've seen, you know,
longer...
Q Seen longer?
A Excerpts.
Q Have you also seen shorter
excerpts?
A Yes.
Q Referring you back to your report,
on page 2 of your report, paragraph five, you
talk about "Google has scanned more than 20
books," et cetera.
Do you see that?
A Yes.
Q Was the information in this
paragraph based on your review of documents
provided to you by Google?
A Yes.

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Q You don't have any independent
knowledge of that?
A No.
Q What about paragraph six?
A Same.
Q When you're a publisher and you
want to sell books, you're interested in getting
the books visibility; is that correct?
A Yes.
Q Did you ever have any
responsibility for permissions for the use of
quotes from books that you had published by
other persons or books?
MR. McGOWAN: Objection, lacks
foundation.
You may answer.
Q Permission fees.
A I'm not sure I understand the
question.
Q Are you conversant with the
concept of permission fees -A Yes.
Q -- for the use of books -A Yes.

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2
Q -- or some content of books?
3
A Yes.
4
Q Was that part of the business of
5 Crown Publishing under your jurisdiction at any
6 time while you were there?
7
A Yes.
8
Q And did you have a permissions
9 department?
10
A Not a whole department, but there
11 was somebody who was responsible.
12
Q What did they do?
13
A When people asked for permissions
14 they would set a rate and ask for money if
15 somebody was going to use it, or they would let
16 them use it for free.
17
Q How was it detennined whether to
18 pay for the use of the text or to do it for
19 free?
20
A They were individual cases.
21
Q So you mean it was decided based
22 on how much was asked for, and -23
A What the book was, who was asking,
24 what the use was going to be.
25
Q And was a permissions department

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ever under your jurisdiction at Random House?
A No, because they worked for the
editors and publishers rather than the sales
department.
Q What about at Workman?
A Yes.
Q It was under your jurisdiction?
A Yes.
Q And was the procedure at Workman
the same as it had been at Crown Publishing?
A Yes.
Q So you had one or more persons who
worked in that area?
A Yes.
Q It was the case that fees were
sometimes charged for permission to use excerpts
of books?
MR. McGOWAN: Objection, vague.
You may answer.
Q Is that correct, as a matter of
custom and practice in the publishing industry?
A Sometimes.
Q Are you aware of any promotional
uses of the books for which you were responsible

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at Crown that were not done by permission of
Crown?
A I'm not sure I understand what
you're asking.
Q While you were at Crown, Crown
promoted its books.
A Yeah.
Q So Crown was deciding how to
promote the books; correct?
A Yes.
Q And one of the ways they would
promote them is to create little pamphlets;
correct?
A Yes.
Q And when those pamphlets were
created, Crown would decide what portion of the
book to put into the pamphlets; correct?
A That's correct, yes.
Q And Crown had a contract with the
author that gave it the right to promote the
books; correct?
MR. McGOWAN: Objection, vague,
calls for a legal conclusion.
You may answer.

Harris
1
2
A Yes, each contract can be a little
3 bit different.
4
Q Was it your understanding that
5 Crown had the right vis-a-vis the author to
6 promote the hooks -A Yes.
7
8
Q -- that Crown was publishing?
9
A Yes.
10
Q And then Crown would take
11 responsibility for the best way to promote the
12 book; correct?
13
A Yes.
14
Q And if Crown decided it didn't
15 want to release a chapter of the book for -- it
16 would not do so; right?
17
A Correct.
18
Q You didn't create pamphlets with
19 chapters for all your books, did you?
20
A No.
21
Q And how were those decisions made?
22
A They were made by the marketing
23 people and the editorial people.
24
Q And what criteria did they take
25 into account?
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A Effectiveness; what would be
effective, what they thought would be effective
in the sale of the book.
Q And did they do that based on
their knowledge of the book itself?
A Yes.
Q And what they thought would best
promote the sales of the book?
A Yes.
Q And did you ever sue anyone for
copyright infringement while you were at Crown?
A No.
Q Never?
A I didn't.
Q Did someone on your behalf?
A I don't think so.
Q What about at Random House?
A I'm sure there were suits, but I
had nothing to do with them.
Q What about at Workman?
A No, I don't think so.
Q You're not litigious?
A No. Thank God.
Q While you worked at Crown, did

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2 anyone other than the author or publisher, in
3 your experience, ever come out with a booklet
4 that had a whole chapter of one of your books?
5
A Not that I know of.
Q How about a booklet that had
6
7 excerpts from 30 pages of one of your books?
8
A Not that I know of.
Q How about a booklet that had
9
10 excerpts from 75 percent of your books?
11
A No.
Q What about at Random House?
12
13
A No.
14
Q What about at Workman?
15
A I don't think so.
Q Now, in this modem world of
16
17 digital computers which we've all come into,
18 there are many ways to promote books that there
19 didn't used to be; isn't that correct?
20
A Yes.
Q Including authors have websites;
21
22 is that right?
23
A That's correct.
24
Q And you advise authors with
25 respect to how they can promote books on their

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when you search on -- I'm talking about the main
Google -- if you put a search term in, they will
search the web to find a match?
A Yes.
MR. McGOWAN: I'll object, vague
with respect to the phrase "index."
Q Well, let me ask you this -MR. McGOWAN: Miss Zack may
actually want to specify what she's
talking about. I suspect what's going
on is that we're dealing in adjectives
that have not been specified.
Q Looking at Exhibit A, which is
your bio that we previously looked at, is that
on the internet?
A Yes.
Q And ifI go to Google and I type
in "Bruce Harris" do you know ifI'll get a link
to your bio?
A Eventually.
Q Have you ever done that?
A I haven't. I think there's a
judge in New Jersey, though.
Q I'm sorry.
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own websites?
A Yes.
Q And is it your understanding that
if an author puts up a website promoting his or
her book, that the result -- that that website
will be searched and results will show up on
Google?
MR. McGOWAN: Objection,
incomplete hypothetical and radically
compound.
MS. ZACK: It's a hypothetical.
A I don't know about the results
appearing on Google.
Q You've never checked that to see
whether it did or didn't?
A No.
Q Do you understand how Google
search engine works?
A I think so, roughly.
Q How does it work?
A They're looking for key phrases.
Q Well, is it your understanding
that Google's search engine indexes the World
Wide Web, what we call the internet, so that

1
Harris
2
A Same name, a judge in New Jersey.
Q So you're not really familiar with
3
4 the way Google's main search engine works?
5
A No.
6
Q What kind of advice do you give
7 your author clients about whether or not they
8 should put excerpts from their books on their
9 own websites?
10
A I think they should have the most
11 promotional website that they can have with the
12 best material, whether it's from the book or
13 featuring features in the book.
14
Q Have you ever advised an author to
15 not include portions of the book, but to promote
16 the book in other ways?
17
A I don't -- that's too broad, I
18 can't -- I can't say yes or no.
19
Q Have you ever given an author
20 advice about how much of the book they should
21 make available in order to promote it?
A No.
22
Q Have you about a publisher?
23
24
A We've talked about different ways
25 to promote chapters or topics.

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Q And what different ways have you
suggested to publishers?
A Using single topics, which can be
then used in a variety of ways. So not just the
entire book, but parts of it.
Q Do you think it's easier for
authors to promote books nowadays with the World
Wide Web, or harder?
A Both.
Q How is it easier?
A Easier because the web obviously
gives you the facility to reach a wide audience
at meaningful cost, but harder because there's
so much more activity, which I call static.
Q Do you ever advise authors or
publishers of out-of-print books as to how to
promote their books?
A No.
Q Why not?
A I've never had a client with
out-of-print books.
Q Is there any point in promoting an
out-of-print book?
MR. McGOWAN: Objection, lacks

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Inside the Book program?
A No, I've never seen this before.
Q Have you ever advised any of your
clients regarding Amazon's Search Inside the
Book program or feature?
A No.
Q If you look at page 2 of this
exhibit, there's print book FAQs.
Do you see that?
A Yes.
Q It says:
"What rights do I need to have to
participate in Look Inside the Book program?
"In order to submit books for Look
Inside you must hold the merchandising rights
for the book you wish to submit and the region
you're submitting for."
Do you see that?
A I see it.
Q Did you ever have an understanding
that Amazon could -- that Amazon's program was
not by permission?
A No.
Q Could you look at page 4, numbered

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foundation, it's a hypothetical.
You may answer.
A
I like to say a book is new to
somebody who hasn't read it, so I don't know.
Q In your report you mention Amazon
Search Inside the Book.
A Yes.
Q And that's a feature of Amazon
that is -- required permission of the author or
the publisher or the rights holder of the book;
is that right?
A
I think so.
Q You don't know for sure?
A
I don't know for sure.
MS. ZACK: Let's mark as PX 90
materials from the internet concerning
Amazon.com Search Inside the Book
program, five pages.
(Amazon Search Inside the Book
FAQs marked Exhibit PX 90 for
identification.)
Q Have you ever seen these -A No.
Q -- F AQs concerning Amazon's Search

Page 37

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2 page 4, it says "4 of 5" at the top. About
3 two-thirds down there's a question, "What is the
4 flexible percent viewing limit feature?
5
And it says, "The flexible percent
6 viewing limit feature gives print book
7 publishers control over how much of the book is
8 available for customers to view."
9
Do you see that?
l O A I see the flexible percent viewing
11 limit feature; is that what you're -12
Q Yes.
13
It states that it gives publishers
14 control over how much of a book is available for
15 customers to view.
16
A Urn-hum.
17
Q Is that similar to the control
18 that you had as a publisher when you decided how
19 much of a book to promote?
20
MR. McGOWAN: Objection, lacks
21
foundation.
You may answer.
22
23
A As a publisher and promotion
24 person, I thought I could use almost any
25 material that would help promote the book.

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Q And is it your opinion that
Google, with no pennission from either the
author or publisher, can do the same thing?
MR. McGOWAN: Objection to the
extent it calls for a legal conclusion.
You may answer.
And vague with respect to "same
thing."
You may answer.
Q Well, I'll make it clear.
You said you thought as a
publisher you could promote the book in any way
you thought fit, basically; correct?
A Yes.
Q Are you offering an opinion here
that Google, without any pennission from a
rights holder of the book, can do that?
A Yes.
Q So if!, Joanne Zack, decide that
I love a book, let's say one of the books you
published previously for Crown -- what books did
you love -A Let's say Hitchhiker's Guide to
the Galaxy.

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MR. McGOWAN: Objection, vague
with respect to "looks the other way,"
incomplete hypothetical.
You may answer.
A I think most authors would be
delighted to have third parties say "I love this
book" and give examples.
Q Your opinion is that most authors
would be delighted.
A Yes.
Q My question was have you seen it
happen?
A You said five chapters? No.
Q Have you seen third parties with
no permissions publish one chapter?
A Not a chapter, but certainly
paragraphs from books that appear on websites,
"I love this book," and then quotes.
Q Paragraphs?
A Yeah.
Q Anything more than paragraphs.
A Not that I know of.
Q And you're not offering any
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Q Hitchhiker's Guide to the Galaxy,
3 I love that book. It's still in copyright,
4 isn't it?
5
A Yes.
6
Q I decide I want to promote it. So
7 I decide to put up five chapters on Boni & Zack
8 and I say, "I love this book, you will too"; is
9 that okay?
10
A I think that would be okay.
11
Q It's okay with you?
12
A Yes.
13
Q You're not litigious?
14
A No.
15
Q Are you expressing an opinion
16 whether that violates the copyright laws?
17
A No, I don't know about the
18 copyright law, I'm not an expert on it.
19
Q Have you ever seen that happen,
20 where a publisher looks the other way when
21 someone-22
MR. McGOWAN: On the Boni & Zack
23
website.
24
Q -- publishes on a website five
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A

No.

Q Have you written any books?
A

Way back when.

Q Are they still in copyright?
A Probably not.
Q Probably not?
A Probably not. Well, maybe. I
don't know.
Q Were they registered?
A Yes.
Q Do you promote them?
A No.
It was more editing than writing;
they were art books.
Q Are you familiar with any revenues
that are derived from either Search Inside the
Book or the Partner Program, Amazon's Search
Inside the Book or the Google Partner Program,
by the persons who participate?
A No.
Q You don't know anything about
that?
A No.
Q Do you know of any revenues that

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2 are derived from any promotional uses of books?
3
MR. McGOWAN: Objection, vague
4
with respect to "derived."
5
You may answer.
6
Q Earned.
7
MR. McGOWAN: By whom is the
8
objection?
9
MS. ZACK: Anyone.
l O A I don't know.
11
MS. ZACK: Let's take a short
12
break.
13
(Recess taken)
14
MS. ZACK: Let's mark as PX 91
four pages entitled "Google Books
15
Partner Program Standard Terms and
16
Conditions," from the internet.
17
18
(Document entitled "Google Books
Partner Program Standard Terms and
19
Conditions" marked Exhibit PX 91 for
20
21
identification.)
22
Q Have you seen this before,
23 Mr. Harris?
24
A No.
25
Q This is a Partner Program,

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Q You didn't know that before today?
A No.
Q Now, if a book is out of print,
how does Google's displaying it help the author
sell the book?
A I assume that people can search
and find it.
Q But ifit's out of print, how
can -- what is the author or the publisher
getting out of it?
A It may be available in e-book
form.
Q What if it's not?
A I don't know.
Q You don't know whether -A I don't know how it would help.
It's possible that if a lot of people click on
that title, a publisher or an author will bring
it back into print if there was demand.
Q Do you have any evidence that
that's happening?
A No.
Q Do you know if Google reports to
authors and publishers of books that it puts

Page 43

1
Harris
2 basically contract, or terms and conditions,
3 that a rights holder can enter into with Google
4 to participate in the Partner Program.
5
A (Nodding)
6
Q If you look on page 2, you'll see
7 paragraph eight, "Ads Payment."
8
A Yes.
9
Q It talks about payment for ads on
10 pages with authorized content.
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You have no knowledge about this
12 feature of the Partner Program?
13
A No.
14
Q Do you understand the Partner
15 Program to be promotional?
16
A Yes.
17
Q And do you understand that Google
18 places ads on some portions of the content that
19 is authorized by participants in the Partner
20 Program?
21
A Yes.
22
Q And do you understand that Google
23 shares a portion of the ad revenues based on
24 clicks with its Partner Program participants?
25
A I see that.

Page 45

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Harris
2 into Google Books through the Library Project
3 how much people have clicked on ads?
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A No.
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Q You don't know one way or the
6 other?
7
A No.
8
Q Do you know how Google earns money
9 from its business?
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MR. McGOWAN: Objection, vague.
11
You may answer.
12
A Only what I've read in the papers
13 about advertising revenue.
14
Q So what's your understanding?
15
A People pay money to advertise
16 their services or products, and when the ad is
17 read, Google gets money from the advertiser.
18
Q Do you know what percentage of
19 books copied by Google in the Library Project
20 were out of print as opposed to in print?
21
A No, I don't.
22
Q Have you ever advised any
23 publishers or authors of out-of-print books how
24 best to put those books back into print?
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A No.

12 (Pages 42 - 45)
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Q Are you familiar with services
such as iUniverse, which will create e-books of
out-of-print works?
A Yes.
Q Are you familiar with any other
services like that?
A I know there are quite a few, but
I don't know the names of them.
Q Have you ever advised any author
or publisher to use any of those services?
A No.
Q Do you consider yourself an expert
in e-book publishing?
A No.
Q Do you consider yourself an expert
in using the internet for promotional purposes?
MR. McGOWAN: Objection, lacks
foundation.
You may answer.
A I'm familiar with using the
internet as a promotional vehicle.
Q Do you consider yourself an expert
in it?
A It's changing so fast, I wouldn't

Page 48

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You may answer.
A It's part of what I do. I don't
know how much.
Q Would it be fair to say that you
focus more of your consulting practice on print
publishing?
A No, I think at this point it's
50/50.
Q When did it become 50/50?
A Oh, I guess about five years ago.
Q Have you personally made any
promotional decisions for any books since you
left Workman Publishers?
A Yes.
Q So you've done that in your
capacity as a consultant?
A Yes.
Q Has that been for publishers?
A For authors and publishers.
Q Have any of them delegated to you
the right to make their promotional decisions?
MR. McGOWAN: Objection, vague.
You may answer.
A In consultation.

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Q So you've given them advice,
basically?
A Yes.
Q With respect to approximately how
many books?
A Say about 25 or 30.
Q So 25 or 30 books since 2004?
A Yeah.
Q With respect to none of these
books have you advised your client to utilize
Google Library Project?
A No.
Q You have not?
A It has not been part of what I've
advised, no.
Q And with respect to those 25 or 30
books, you have not advised any of them to use
Amazon's Search Inside the Book function?
A I recommended that they use it.
Q Oh, you did recommend that?
A Yes.
Q With respect to how many books?
A I would say all of them.
Q Did you recommend any other

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say I'm an expert.
Q You left Workman in 2004.
A Yes.
Q And a lot has happened since then.
A That's right.
Q With respect to the internet,
anyway.
A Yeah.
Q Do you think you've kept up with
all that?
A I've -MR. McGOWAN: Objection, vague.
A I've kept up with as much as I
can.
Q Do you work full-time as a
consultant?
A No.
Q Approximately how much time do you
work now?
A About four days a week.
Q How much of your time is devoted
to working on matters involving digital rights,
digital promotion or digital publication?
MR. McGOWAN: Objection, compound.

Page 49

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Page 50

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2 digital promotions other than Amazon for any of
3 the 25 to 30 books?
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MR. McGOWAN: Objection, vague.
5
You may answer.
6
A Yes.
7
Q What other types of digital
8 promotion?
9
A Book trailers, contests, games.
10
Q Anything else?
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A Nothing specific I can remember.
12
Q What's a book trailer?
13
A A book trailer is a -- like a
14 movie trailer, like a small feature, video
15 feature, about the book.
16
Q Like an interview with the author?
17
A Could be an interview with the
18 author, it could be pages from the book, it
19 could be sound and light; it could be anything.
20
Q So you didn't give the same advice
21 for each of these 25 to 30 books?
22
A No, no.
Q And when you gave advice about how
23
24 to promote the book, what were your
25 considerations?

Page 52

Harris
2 see?
3
A I would get -- book titles would
4 come up.
5
Q And with respect to those titles,
6 did you ever look -- do any searches within the
7 books?
8
A Yes.
9
Q Did you ever see a search result
10 that was snippets only and it said that this was
11 from the Library Project?
12
A Yes.
13
Q And how many searches did you do
14 within a single book?
15
A Two or three.
16
Q And you stopped?
17
A Yeah.
18
Q What was the purpose of doing the
19 searches?
20
A Just to see how it worked, find
21 out a particular piece of information.
22
Q Was that in connection with your
23 retention?
24
A Lately, yes ..
25
Q Through Google?

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A The target market and the amount
2
of money of you could spend, our budget.
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Q Anything else?
4
A No.
5
6
Q Now, with respect -- going back to
Google Books itself, you said you had done a
7
search for a book title or some sort of search?
8
A Yeah.
9
Q Did you do any search within the
10
books, where you put -- after you found a book,
11
you then searched within the book?
12
A No.
13
14
Q When you've done your searches,
have you used the Google main search engine or 15
have you gone to the Google Books -16
A I went to the Google Books. Both,
17
18
I guess.
Q Let's talk about Google Books.
19
When you went to Google Books, how
20
did you search? Did you put in the name of a
21
book, or did you put in just a general search
22
term?
23
A Both.
24
25
Q And what type of results did you

Page 53

Harris
A Yes.
Q Had you done that before you were
retained by Google?
A No.
MS. ZACK: I don't have any other
questions.
MR. McGOWAN: I don't have any
questions.
(Time noted: 11:03 a.m.)

BRUCE S. HARRIS
Signed and subscribed to before me
this _ _ dayof
,2012.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Notary Public

14 (Pages 50 - 53)
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Filed 08/03/12 Page 41 of 69

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CERTIFICATE

2

I, HELEN MITCHELL, a Shorthand
Reporter and Notary Public, do hereby
certify:
I reported the proceedings in the
within-entitled matter, and that the
within transcript is a true record of
such proceedings.
I further certify that I am not
related, by blood or marriage, to any of
the parties in this matter and that I am
in no way interested in the outcome of
this matter.
IN WITNESS WHEREOF, I have
hereunto set my hand this 6th day
of June, 2012.

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ERRATA SHEET
VERITEXT REPORTING COMPANY
1250 BROADWAY
NEW YORK, NEW YORK 10001
800-362-2520
CASE: AUTHORS GUILD, ET AL. VS. GOOGLE, INC.
DEPOSITION DATE: JUNE I, 2012
DEPONENT: BRUCE S. HARRIS
PAGE LINE(S) CHANGE
REASON
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BRUCE S. HARRIS

HELEN MITCHELL

22
SUBSCRIBED AND SWORN TO BEFORE ME
23 THIS _ _ DAY OF _ _ _ _,20_.

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25 (NOTARY PUBLIC)

MY COMMISSION EXPIRES:

Page 55

2 June 1,2012
3
INDEX
4 WITNESS
EXAMINATION BY
PAGE
5 BRUCE S. HARRIS Ms. Zack
4
6
7
EXHIBITS
8
FOR IDENTIFICATION
PAGE

9
Exhibit PX 89 Expert report by Mr.
4
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Harris
II Exhibit PX 90 Amazon Search Inside the 36
BookFAQs
12
Exhibit PX 91 Document entitled
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"Google Books Partner
Program Standard Tenns
14
and Conditions"
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15 (Pages 54 - 56)
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Filed 08/03/12 Page 42 of 69

Page 52 :
1

Harris

2

A

Yes.

3

Q

Had you done that before you were

4

retained by Google?

5

A

No.

MS. ZACK:

6

I don't have any other

questions.

7

MR. McGOWAN:

8

I don't have any

questions.

9

10

(Time noted:

11:03 a.m.)

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12

13

BRUCE S. HARRIS

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Signed and subscribed to before me

16

this

---

day of _ _ _ _ _ _ _ , 2012.

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Notary Public

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_........ _.

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..

A-825
Case 1:05-cv-08136-DC Document 1053-7

Filed 08/03/12 Page 43 of 69

EXHIBIT 41

A-826
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Page 1
1

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

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6

THE AUTHORS GUILD, INC.,
Associational Plaintiff, BETTY
MILES, JOSEPH GOULDEN, and JIM
BOUTON, on behalf of themselves
and all other similarly situated,)
Plaintiffs,

7

Civil Action No.
05 CV 8136 (DC)

against

8

)

9

GOOGLE INC.,

)
)

Defendant.

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)

------------------------------)

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One Penn Plaza
New York, New York

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June 6, 2012
10:31 a.m.

Deposition of ALBERT N. GRECO, held at the
offices of MILBERG LLP, before LINDA DEVECKA, a
Notary Public of the State of New York.

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Page 2

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2 APPEARANCES:
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BaNI & ZACK, LLC
5
Attorneys for Plaintiffs
6
15 St. Asaphs Road
7
Bala Cynwyd, Pennsylvania 19004
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BY: JOANNE ZACK, ESQ.
9
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DURIE TANGRI LLP
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Attorneys for Defendant
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217 Leidesdorff Street
San Francisco, California 94111
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BY: DAVID McGOWAN, ESQ.
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MS. ZACK: Mark this, please.
(Plaintiffs Exhibit 92, document titled
"Expert Report of Professor Albert N. Greco May
3,2012", marked for identification, as of this
date.)
ALB E R TN. G R E CO, called as a
witness, having been duly sworn by a Notary
Public, was examined and testified as follows:
EXAMlNATION BY
MS. ZACK:
Q. Good morning, Professor Greco.
Could you just state your full name for
the record, please.
A. Sure. Albert N. Greco, G-r-e-c-o.
Q. What is your current position?
A. I am a professor of marketing, Fordham
University, New York City, in the Schools of Business
Administration.
Q. You have been retained in this matter by
Google as an expert?
A. Yes.
Q. When were you retained?
A. Sometime in March of2012. Perhaps the
middle of the month. Somewhere in that time period.

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Q. What is your area of expertise?
A. I have done research on customs and
practices in the book industry, also the scholarly
journal business which is obviously not of any
interest today.
Q. When you say you have done research on the
customs and practices in the book industry, what
research are you speaking of?
A. I am the author or editor of 12 scholarly
books, most of which dealt with some aspect of the
book publishing industry, including a book called
"The Book Publishing Industry," another one called
"The Culture and Commerce of Publishing in the 21 st
Century." A series of journal articles in a variety
of journals here and in Europe on various aspects of
the book publishing industry. Presentations at
conferences.
Q. Are there particular aspects of the book
publishing industry that you focus on in your
research?
A. A great deal of the research is spent on
sales, marketing, distribution. I look at the other
areas of the industry, too.
Q. Do you have any expertise in legal matters

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IT IS HEREBY STIPULATED AND AGREED, by
and among counsel for the respective
parties hereto, that the filing, sealing and
certification of the within deposition shall be
and the same are hereby waived;
IT IS FURTHER STIPULATED AND AGREED
that all objections, except as to the form of
the question, shall be reserved to the time
of the trial;
IT IS FURTHER STIPULATED AND AGREED
that the within deposition may be signed
before any Notary Public with the same
force and effect as if signed and sworn to
before the Court.

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Greco
2 concerning the book publishing industry?
3
A. I am not an attorney. I have written
4 about contracts in various publications.
5
Q. Do you consider yourself an expert on fair
6 use?
7
A. I am familiar with fair use.
Q. But not an expert?
8
9
A. I have never written extensively on fair
10 use.
11
Q. You have been an expert before, I take it?
12
A. Yes.
MR. McGaW AN: Let me just caution you to
13
14
wait until Ms. Zack is finished speaking because
15
it's important that you not speak over each
other.
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THE WITNESS: Okay.
18
Q. We have marked as PX 92 your expert
19 report. You have that, right?
20
A. Yes, I do.
Q. If you look at what was marked as Exhibit
21
22 B to your expert report which comes very near the
23 end.
24
A. Exhibit B, yes.
25
Q. There is a list of, I think, four cases

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retained to discuss book marketing, book selling and
book distribution in the United States.
Q. You served as an expert for Feld, you
said?
A. Yes, Feld.
Q. Is that a person or a publisher?
A. Mr. Feld is a business executive.
Q. Do you recall the claims against him?
A. In terms of the book publishing industry,
there were allegations that Pottker, who was and I
still believe is an author, there were allegations
that Mr. Feld tried to hurt her career as an author.
Q. What was the nature of your expert
opinion?
A. Well, there was a confidentiality
agreement. I was asked to look into book sales,
marketing and book distribution during the period of
time in which the allegations centered on.
Q. Did this case have anything to do with
eBooks?
A. No.
Q. Or digital marketing of books?
A. I don't believe so.
Q. Is there anything else you can tell me

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that you served as an expert in, is that correct?
A. Yes.
Q. In the last five years or four years or is
this all the ones you have -A. This is a complete list covering the
period from 2008 to the present.
Q. It's a complete list from 2008 to the
present?
A. Yes.
Q. Prior to 2008, did you serve as an expert
in any litigation matters?
A. The first matter actually started, I
believe, in 2007. It was settled in 2008.
Q. Is that on this list?
A. Yes, it is.

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Q.

Which one is that?
Number 1.
Q. Which side did you serve as an expert for
that case number 1, Pottker versus Feld?
A. Feld.
Q. What type of case was that?
MR. McGOWAN: Objection, vague. You may
answer.
A. It involved a variety of issues. I was
A.

Page 9

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Greco
2 about that case?
A. It was settled, and I have no idea about
3
4 the terms of the settlement.
5
Q. Other than the settlement. I mean, under
6 your confidentiality agreement as you understand it,
7 is there any other matters that you can tell me about
8 concerning your report?
9
A. I analyzed sales data for a period of
10 time, looked at marketing customs and trends during
11 that period of time, talked about distribution of
12 books into the channels of distribution during that
13 time. It dealt really with those three areas.
Q. But your report didn't deal with the eBook
14
15 channel of distribution?
16
A. No.
17
Q. And it didn't deal with marketing online?
18
A. No.
19
Q. Did it deal with digital copying?
20
A. I don't believe so.
21
Q. The second case listed is Health
22 Communications, Inc. versus Chicken Soup For the Soul
23 Publishing.
24
Who were you retained as expert for?
25
A. Health Communications, Inc.

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Greco
Q. What line of business were they in?
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3
A. They are a book publisher publishing a
4 variety of different kinds of books, often in
5 inspirational, self-help psychology areas and other
6 areas.
7
Q. What was the nature of the claim in that
8 litigation?
9
A. Two authors had a long-term contract with
10 Health Communications. The contract reached a
11 termination point and the two authors left. As I was
12 told, Health Communications had the legal authority
13 to print and distribute backlist titles that were
14 originally printed under the then terms and
15 conditions of a contract.
16
When the two authors left -- and they were
17 the two primary editors of this book series called
18 "Chicken Soup For the Soul." When they left and went
19 to a new publisher, and they had every right to do
20 that, the allegation was that material that had
21 originally appeared in books published by Health
22 Communications, Inc. was being used in new books
23 published by a new publisher, and there was a request
24 for an injunction to stop the sale of these new books
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Greco
THE WITNESS: I really don't know for
sure.
Q. In any event, you are not aware of a
trial? You are not aware of any trial?
A. No, I'm not.
Q. And you didn't testify at a trial?
A. There was a hearing before a judge.
Q. You did testify at the injunction hearing?
A. Yes.
Q. That was in Connecticut?
A. Yes.
Q. Was an injunction granted?
A. No.
Q. Was there a confidentiality agreement in
that case?
A. Yes.
Q. Do you recall more specifically what you
testified about sales and marketing in that case?
MR. McGOWAN: Objection, asked and
answered. You may answer.
MS. ZACK: I said "more specifically."
Q. You don't have to repeat what you already
said.
A. I was asked a series of questions

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regarding customs, practices, traditions in the
selling of books, the marketing of books, the
distribution of books, and a whole series of
questions on those three topics.
Q. You don't remember what questions there
were, what you answered?
A. Not really, in all candor.
Q. Referring you to case number 3 on your
list, the National Federation of the Blind versus the
Arizona Board of Regents, who retained you as an
expert?
A. National Federation of the Blind.
Q. What was the nature ofthe claims at issue
in that case?
A. The National Federation of the Blind had
represented individuals that had vision impairment
problems. Arizona State University had an honors
program, which is very typical, and they were using
an electronic handheld device, an eReader called the
Kindle, and the National Federation of the Blind felt
that individuals that had a vision problem could not
use that device. It really centered on higher
education college textbooks.
Q. When you say "centered on," what do you

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previously-published books.
Q. What was the nature of your opinion as an
expert?
A. I was asked to deal with the sales and
marketing and distribution issues, customs,
traditions, during the period in which the matter
centered on.
Q. Did that case have anything to do with
eBooks?
A. I don't believe it had anything to do with
eBooks.
Q. Did it have anything to do with digital
marketing of books?
A. Only in the sense that books by that point
were available online, but that was not a major
issue. It was very much a secondary issue in the
matter.
Q. And it says "Matter will go to trial."
Did it ever go to trial?
A. I don't know. I have a feeling the
parties may have settled or perhaps the one party
just dropped the suit.
MR. McGOWAN: I caution you not to guess.
If you know or--

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mean?
A. They asked me to discuss trends in higher
education textbook publishing, sales, marketing,
distribution.
Q. What did you say about those areas?
A. They asked specifically about the use of
textbooks in colleges in the United States and in
terms of the use of eReaders and the potential growth
of eReaders in that market.
Q. Anything else that you talked about?
A. That was really the extent of it.
Q. Did that case go to trial?
A. No. The parties settled.
Q. You said you testified in an injunction in
case number 2, Health Communications, Inc.
Did you ever testify at a deposition in
the Pottker case?
A. I gave depositions in the Pottker case.
Q. And in the National Federation of the
Blind case?
A. Yes.
Q. The fourth case is Illinois Computer
Research versus Harpo Productions.
Who retained you there?

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Q. You talked about historical or custom and
practices as to book distributions of printed books?
A. Of printed books and excerpts.
Q. SO what was your opinion?
A. That there was a long tradition in the
United States and a long tradition in the U.K. but
specifically a long tradition in the United States
about sales, marketing and distribution of printed
books and the use of excerpts in the United States.
Q. Excerpts for what purpose?
A. Book excerpts.
Q. Used for what purpose of book excerpts?
A. Several different uses. One was
marketing, and one centered on the fact that certain
authors released books as excerpts over a period of
time. In a sense in serials, magazines.
Q. You are saying it was a custom and
practice for authors to release portions of their
books as excerpts in magazines over time as serials?
A. Some authors did that going back to the
mid 19th century in the United States.
Q. What did you say about marketing?
A. Specifically, you know, why excerpts were
released. In some cases it was to market the entire

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A. Harpo Productions, Inc.
Q. What is their line of business?
A. It is a primarily but not -- it's
primarily a television -- it's a company with
television operations and a magazine. They may have
other -- they have been involved in the motion
picture industry also. They may have other
businesses that I am not aware of.
Q. What was the claim in that case or claims?
A. It was a patent -- the allegations were
that it was a patent infiingement case involving
books and book excerpts.
Q. Patent infringement of book excerpts?
A. Yes.
Q. Was there a copyright claim, too?
A. I don't believe there was any copyright
claim in this matter.
Q. What type of matters did you offer an
expert opinion on for Harpo Productions?
A. Book sales, book marketing, book
distribution of printed books and excerpts in the
United States back to approximately the middle of the
19th century and some work on those issues in the
United Kingdom back to the 19th century.

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book.
Q. Why excerpts were released by whom?
A. It included author Conan Doyle, James
Michener and more than a dozen other authors. I
can't remember all of them.
Q. SO you analyzed the circumstances under
which those authors released excerpts for marketing
purposes?
A. Yes.
Q. What did you conclude about that?
A. That it was as very longstanding tradition
in the United States and in the U.K. for some authors
to release excerpts in order to generate interest in
their writings and the ultimate publication of a book
or the use of excerpts after a book had been
published in order to generate interest in the sales
of their book or books.
Q. How is that relevant to the case, this
Illinois Computer Research versus Harpo Productions
case?
MR. McGOWAN: Objection to the extent it
calls for a legal conclusion. You may answer.
Q. How is it pertinent to the case?
A. The allegation from Illinois Computer

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Research LLC was that they had a patent on the use of
excerpts online.
Q. They had a patent on the use of excerpts
from certain books?
A. I believe the allegation was for all
content, not just books, but this matter that I was
involved in centered only on books.
Q. Illinois Computer Research was alleging it
had a patent on the use of excerpts online from all
books?
A. I don't believe they said all books. They
were dealing specifically with Harpo Productions,
Inc.
Q. SO they said they had a patent on the use
of excerpts from books that Harpo Productions, Inc.
had an interest in?
MR. McGOWAN: I am going to object.
Q. Is that your understanding?
MR. McGOWAN: I am going to object to the
extent it calls for claim construction. It is a
pending case. I think his testimony establishes
the relevance. You may answer.
Q. You can say you don't know if you don't
know.

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Q. And now this one?
A. Yes.
MR. McGOWAN: Exhibit C.
Q. If you look at the last page ofPX 92
which is Exhibit C, it's a list of materials
considered.
A. Yes.
Q. Did you read all these materials that are
listed cover-to-cover?
A. Yes.
Q. Most of them are not cited in your report,
you would agree, correct?
A. Correct.
Q. What use did you make of these materials
on this list?
A. It provided background information about
the matter between the Authors Guild and Google.
Q. Before you were retained, did you have any
awareness of this case?
A. Yes.
Q. You mention in your report, the body of
your report, that you have a copyright interest in a
book, is that right?
A. Yes.

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A. I don't know the full extent of their
claim. I only was asked to discuss the Harpo
Productions matter.
Q. Did you give a deposition in that case?
A. Yes.
Q. Are you under a confidentiality agreement
there?
A. Yes.
Q. Do you know the disposition ofthat case?
A. It was settled.
Q. Have you ever served as an expert for
Google in any matter?
A. No.
Q. Have you ever been retained previously by
Google in any capacity?
A. No.
Q. Have you ever served as an expert for
Durie Tangri in any matter?
A. No.
Q. For Keker VanNest?
A. No.
Q. Is it the case that you served as an
expert in only these four cases and that's it?
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2
Q. Were you aware of this settlement that
3 never was approved finally in this case?
4
A. Yes.
5
Q. Did you file a claim?
6
A. No.
7
Q. Did you object?
8
A. No.
9
Q. Have you talked to anyone at Google
10 personally other than counsel about the matters that
11 you were retained to be expert about?
12
A. No.
13
Q. Have you talked to anyone else about those
14 matters?
15
A. My wife is aware of this.
16
Q. SO you talked to your wife.
17
I presume you talked to counsel at Durie
18 Tangri?
19
A. Yes.
20
Q. Anyone else?
21
A. No.
22
Q. Did anyone assist you in writing your
23 report?
24
A. No.
25
Q. Not even Durie Tangri?

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MR. McGOWAN: Objection, vague.
Q. You can answer yes or no.
A. No.
Q. Have you ever written any articles about
Google Books?
A. No. I may have mentioned it, but I don't
believe so.
Q. Have you written any articles about Amazon
Search Inside the Book?
A. No, but I may have mentioned it.
Q. Have you written articles about digital
marketing?
A. Articles, probably if it was -- not an
article on digital marketing as such. It's possible
it's been mentioned in a book or articles that I have
done but I have never done an exclusive study on this
matter.
Q. And you never studied Google Books from a
research point of view?
MR. McGOWAN: Objection, vague. You may
answer.
A. I don't believe I have written anything
specifically about Google Books except in passing.
Q. What about anything about Google in

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foundation, vague. You may answer.
A. I have never done anything specifically on
Google.
Q. You talk in your report about mergers and
acquisitions, et cetera, in the publishing industry,
is that correct?
A. Yes.
Q. Is that something you studied?
A. Yes.
Q. What is the purpose of those studies?
MR. McGOWAN: Objection. Compound, vague.
You may answer.
A. Scholars are interested in what has
happened in various industries and sectors. I
happened to study this sector in this industry.
There have been a series of mergers and acquisitions
in this industry in the United States going back into
the 19th century. I thought it was an interesting
topic. Not a lot of scholars have addressed the
issue. I did a series of studies on it.
Q. Did you compare the rate of mergers and
acquisitions in the publishing industry to the rate
of mergers and acquisitions in other industries?
A. If I did, only in passing.
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general, have you written any articles about Google
general business?
A. No article specifically on Google.
Q. Articles about search engines?
A. No article specifically about search
engines.
Q. Have you studied or written articles about
digital copying?
A. No article specifically on that topic.
Q. Generally?
A. In general terms I have mentioned it in
various publications because it's significant.
Q. Have you written any articles about
libraries engaging in digital copying of any type?
A. Nothing specifically on that topic.
Q. How about libraries setting up or engaging
in their own search engines?
MR. McGOWAN: Objection, vague. You may
answer.
A. I have looked at libraries in very general
terms. So, not really.
Q. Have you ever studied Google's market
power?
MR. McGOWAN: Objection. Lacks

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Q. Referring you back to the ftrst page of
the body of your report which is PX 92.
A. Yes.
Q. Paragraph 2 says "I have been asked to
describe the following:", and then subparagraph A
says "Characteristics and practices in the book
industry, such as mergers, acquisitions, and
reversions, that affect one's ability to locate
rights holders for books."
You were asked by Google to talk about
that in your report?
A. Yes.
Q. Had you previously written about that
subject in particular, the effect of mergers,
acquisitions and reversions on the ability to locate
rights holders for books?
A. Not in terms of the last part of the
sentence "to locate rights holders for books."
Q. You have published no articles about how
the mergers, acquisitions and reversions have
historically affected one's ability to locate rights
holders for books?
A. If I did, it was in passing.
Q. Do you recall doing that?

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A. I have worked on 12 books, 20 articles, 10
professional books. It's certainly possible
somewhere I referred to that, off the top of my head.
I would have to go back and look, in all candor. I
may have.
Q. You don't cite any articles of that
nature?
A. No.
Q. Have you ever engaged in a study whose
object was an attempt to locate rights holders for
books?
A. I have never done such a study on that
topic.
Q. Have you asked others to do it for you?
A. No.
Q. Have you researched studies, if any, by
others on that topic?
A. I believe there have been some articles on
those issues in a variety of publications that I
almost certainly read and may have even cited
somewhere along the line.
Q. But you didn't cite them in your report?
A. No.
Q. Have you ever attempted to locate a rights

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holder for a book?
A. Yes.
Q. In what context?
A. A colleague named John Tebbel wrote what I
believe was the definitive four-volume history of the
book publishing industry in the United States. The
book was published by a company that, if! remember
correctly, put the books out of print, out of stock,
and the company no longer did books.
I was in discussions with a university
press director about possibly bringing those four
books back into print. The author died, and I could
not find out who held the rights, whether his estate
or the initial publisher, and we dropped the matter.
Q. When you say you couldn't find out, what
did you do to attempt to find out?
A. I believe I tried to reach out to people
in Bowker, the original publisher, but they no longer
were doing books. They had sold certain operations
to another company and, unfortunately, John Tebbel
passed on, and we just dropped the matter.
Q. Any other times other than that time?
A. Yes. I was talking to a series editor-a book series editor who was trying to bring older

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books back in print, and I gave him some suggestions
for titles, and the matter seemed to die.
Q. Other than passing on the suggestion, did
you do anything there to attempt to locate anyone?
A. Not really.
Q. Anything else; any other times that you
attempted to locate a rights holder for a book?
A. Not that I can remember.
Q. 2 B says "The benefits to authors of
making it easy for potential readers to find their
books."
That was something that Google asked you
to opine about?
A. Yes.
Q. Have you previously written on that
subject?
A. I have written about new title output, the
number of backless books, books in print, and about
what is often called in the marketing literature
"clutter in the marketplace."
Q. In connection with any of those writings,
did you write about the benefits to authors of making
it easy for potential readers to find their books?
A. I wrote about the problem authors face in

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getting publicity for books in a business environment
where there is a very large number of new titles
published every hour of the day.
Q. Anything else on that subject?
A. I would have to go back and reread the
various things that I wrote about.
Q. Have you ever written about the question
of whether the Internet allows authors to get more
noticed through their own websites?
A. I probably have certainly mentioned that
in some of the publications that I worked on, yes.
Q. What about publisher websites?
A. I believe I have written about publisher
websites as a marketing tool.
Q. And you have written about author web sites
as a marketing tool?
A. I am sure I have. If you write about
marketing books, these are very typical topics that
you would at least mention.
Q. Are there any other digital tools aside
from search engines that you have written about with
respect to marketing books?
MR. McGOWAN: Objection, vague. You may
answer.

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2
A. I have probably written about blogs and
3 other digital sites that discuss books, analyze
4 books, talk about books or authors. Those have grown
5 in popularity in the last few years.
6
Q. 2 C says "Industry custom and practice
7 pertaining to the sales and marketing of books, and
8 in particular to the practice of allowing potential
9 buyers to search within books."
10
A. Yes.
11
Q. Google asked you to opine about that?
12
A. I have written a lot about the sales and
13 marketing of books. This is the first time I have
14 put ink on paper dealing with "allowing potential
15 buyers to search within books."
16
Q. The second portion of2 C which says "and
17 in particular to the practice of allowing potential
18 buyers to search within books," you haven't written
19 about that before?
20
A. If so, only in passing.
21
Q. Have you discussed that particular
22 practice with publishers?
23
A. I have discussed it with individuals in
24 the book publishing industry in the United States.
25
Q. Have you discussed it with authors?

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I couldn't say for sure whether they were the very
first one.
Q. Who else do you understand to be engaged
in this practice other than Amazon.com?
MR. McGOWAN: Objection, vague. You may
answer.
A. Barnes&Noble.com, companies that are
involved in selling new or backless books online, and
that list would be, I would assume, dozens of various
companies.
Q. Can you give me an example of one such
company?
A. In addition to Amazon.com or
Barnes&Noble.com?
Q. Yes.
A. Google. I assume Apple. I am sure there
are many, many others.
Q. Have you, yourself, searched inside a book
at Amazon?
A. Yes.
Q. What have you done with respect to Barnes
&Noble?
MR. McGOWAN: Objection, vague. You may
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1
Greco
A. I have had discussions with authors.
Q. With respect to this practice of allowing
2
Q. Who have you discussed it with? Which
3 potential buyers to search within books.
individuals in the book publishing industry have you
A. I have used the Barnes&Noble.com website
4
discussed that topic with?
5 and other websites doing various research proj ects.
A. From 1985 to the present, I have talked to
6
Q. Do you know whether or not the books that
a sizeable number of people in this industry.
7 you can search through at Amazon.com are there by
Q. Let me stop you there.
8 permission of the author or publisher?
I mean, this particular practice didn't
9
MR. McGOWAN: Objection, vague. You may
start in 1987, right?
10
answer.
A. Right.
11
A. I would have to assume yes.
Q. Weare talking more recent conversations
12
Q. Why do you say that?
you would have had, correct?
13
A. Amazon.com is a well-known company, and I
A. Yes.
14 couldn't list all the various books or book
Q. What I am asking you is, since this
15 publishers, but let's assume it's HarperCollins, any
practice developed, allowing potential buyers to
16 of those major publishers, any of the major
17 university presses, I would assume that they will
search within books, do you know when the practice
first developed online?
18 have a contract stipulating what can and cannot be
A. I couldn't give you a month or a year
19 posted on Amazon.com, Barnes&Noble.com, et cetera.
without going back and looking at some documents. I 20
Q. What about Google?
would assume it was sometime after August 1995.
21
MR. McGOWAN: Objection, vague.
Q. Do you know who first developed a tool
22
Q. Do you assume that -online that allowed potential buyers to search within
A. I would have to assume. I have not read
23
books?
24 any contracts between a publisher and/or an online
A. I believe Amazon.com was involved in this.
25 site. I would assume there has to be a contract

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2 stipulating terms and conditions.
3
MR. McGOWAN: I will caution the witness
4
not to assume as opposed to testifying as to
5
knowledge.
6
THE WITNESS: Okay.
7
Q. Did you have that assumption when you
8 wrote your report?
9
A. Yes.
Q. Just to be clear, when you wrote your
10
11 report which is PX 92, you assumed that all of the
12 excerpts that show up in Google Books are shown by
13 permission of the publisher or author?
14
A. I assume that's correct.
15
Q. Referring you to paragraph 3 which says
16 "In brief, my opinion on these topics is as follows:
17 Given the many factors that make it difficult to
18 trace rights holders, it would be infeasible to clear
19 rights for any comprehensive attempt to digitize
20 books, such as the 20 million plus books in Google
21 Books."
22
A. That's what I wrote, yes.
23
Q. When you say "infeasible," what do you
24 mean?
25
A. When you look at new title output and when

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MR. McGOWAN: Objection. Vague, lacks
foundation. You may answer.
A. I do not remember what the percentage was
of the 20 million that were or were not in public
domain.
Q. 3 B says "Custom and practice in the book
industry recognize that it is both difficult for
authors to have their works discovered by potential
readers and important for authors to make it easy for
readers to find their works." Then it says "Search
tools such as Google Books, which make it easier for
authors to be found, benefit rather than harm
authors."
A. Correct.
Q. Is it your opinion that any marketing tool
that makes it easier for authors to be found benefits
rather than harms authors?
MR. McGOWAN: Objection, vague. You may
answer.
A. In light of the new title output in the
last eight to ten years, it is amazingly difficult
for any author aside from what you would call a star
author to have his or her books marketed effectively.
Q. Is it your opinion that any tool that

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2 you look at backless books in print, you are dealing
3 with a very, very large number of titles. Some of
4 those titles would be relatively easy to find who is
5 the rights holder.
6
Looking at this industry, it would be
7 difficult to find certain rights holders.
8
Q. Do you draw any further conclusions from
9 that?
lOA. 20 million plus books probably had well
11 more than 20 million authors because many books have
12 coauthors.
13
Q. You said you read Dan Clancy's deposition,
14 right?
15
A. Yes.
16
Q. In his deposition he explained that these
17 20 million books include public domain books?
18
A. That's my understanding.
19
Q. Is it your understanding that it's not
20 necessary to clear rights for public domain books?
21
A. As I understand it, if a book is in public
22 domain, anyone can publish it.
23
Q. A substantial portion of the 20 million
24 books are in the public domain and don't require
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helps authors market their books is a good thing?
MR. McGOWAN: Objection, vague. Asked and
answered. You may answer.
A. I believe anything that helps market a
book helps theoretically sell the book, and that
ultimately helps the author.
Q. Do you believe that marketing without
permission of a publisher and author is a good thing?
MR. McGOWAN: Objection, vague. You may
answer.
A. That requires a legal conclusion. I am
not an attorney.
MR. McGOWAN: We have been going about an
hour. When you get a chance to change
direction, I would like to take a break.
MS. ZACK: I just want to get through this
one paragraph.
Q. 3 C, it says "Authors are paid for sales,
not searches. Both as matter of industry custom and
practice, and in my own personal experience, authors
do not receive royalties in return for allowing their
works to be searched."
What do you mean by that?
A. The first sentence in 3 C, an author is

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2 paid when -- an author would receive some sort of a
3 royalty payment when a book is sold. I have seen
4 nothing in the literature or I have heard nothing
5 from individuals that I have talked to that authors
6 are paid anything for a search.
7
As for the second sentence, including my
8 own personal experiences, authors do not receive a
9 royalty in return for allowing their works to be
10 searched. They receive a royalty based on the terms
11 and conditions of whatever the contract stipulates
12 for sales, not searches.
13
The third part of the third sentence,
14 search benefits authors in the sense that if you are
15 looking for a book on the French Revolution, you
16 would have to do a search in order to perhaps find
17 that book. So if the search leads to someone finding
18 the book and possibly buying the book, then that can
19 lead to, depending on the terms and conditions of the
20 contract, a royalty payment.
21
I have no reason to believe that authors
22 are paid for "the development of things that help
23 them sell books."
24
Q. When you say you have no reason to
25 believe, that means because you have never seen it

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MR. McGOWAN: Yes.
(Recess.)
Q. Turning to page 2, Professor Greco, of
your report.
A. Yes.
Q. Paragraph 4, did you write that yourself?
A. Yes, based on -Q. That is based on the materials -A. From Clancy.
Q. -- provided by Google; primarily
Mr. Clancy's declaration?
A. Yes, I read through the declaration.
That's where the stats came from.
Q. In paragraph 5 you mention that your book
called "The Book Publishing Industry" is in the
Google partner program, is that right?
A. Yes.
Q. Who is the publisher of that book?
A. The publisher is Erl Baum, but Erl Baum
was sold to Informer Pic, a British company, which in
the United States is known as Taylor, Francis &
Routledge. At this minute, the official publisher is
Taylor, Francis & Routledge, even though an older
name appears on the spine.

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2 happen?
3
A. As far as I know, the industry custom and
4 practice is that if an author gets involved in
5 marketing his or her book, a publisher -- it depends
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on the nature of the publisher and the author and the
book. If you are talking about a big trade book, a
big trade publisher, the general practice is that an
author who might do a five or ten-city hype tour, go
out and perhaps read from your book, perhaps sign
books, the custom and practice in the industry is
that the publisher pays for all costs related to
taking that individual from New York to Chicago, et
cetera, et cetera, but the author is not paid for his
or her time. They would cover airfare, room and
board, cab fare, et cetera, et cetera.
So that is my understanding of the
industry practice in terms of big trade books and big
trade publishers. If you are talking about small
publishers and especially university presses, I think
it's fair to say that university presses are happy if
an author goes out on a tour, but they rarely pay for
those costs.
MS. ZACK: Okay. Do you want to take a
break?

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Q. How is your book, the book publishing
industry, in the partner program? Is that by
permission of your publisher?
A. It's my understanding that the 45,000
publishers, including the publisher that I deal with,
has an agreement with Google, unlike the library
program.
Q. I'm not asking about all those other
books, I am asking about your book.
A. How did it end up in the program?
Q. Yes.
A. I was never even informed. It was just
done between in this case Taylor & Francis, as one of
the 45,000 publishers involved in the partner
program.
Q. Do you know how much of your book is being
displayed in the partner program?
A. Perhaps a chapter or large portions of a
chapter. I have never really measured it.
Q. Do you get royalties from that book?
A. Yes.
Q. Was that a work for hire or is the
copyright in your name?
A. I wrote the original book --

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MR. McGOWAN: Objection to the extent that
that's not the legal universe. It calls for a
legal conclusion. You may answer.
MS. ZACK: Let me withdraw it.
Q. Is the copyright to that book in your
name?
A. No.
Q. Whose name is it in?
A. Either Informer Pic, Taylor & Francis or
Routledge. However they are structured in the United
States.
Q. SO it's in the publisher's name?
A. It's in the publisher's name.
Q. You said you are not quite sure how much
of your book is displayed in the partner program; you
think it's perhaps a chapter?
A. It's perhaps a chapter or very close to a
chapter.
Q. Are you aware that in the partner program
Google shares ad revenues with its partners?
MR. McGOWAN: Objection. Lacks
foundation, compound. You may answer.
A. I have a very vague understanding of that.
Q. When you say a "vague understanding," do

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you understand at all what the relationship is there?
A. No. I understand there is some sort of a
sharing, but I have no idea about it and have never
received any royalty from it, at least to the best of
my knowledge.
Q. Over the last few years, have you received
royalty payments for your book?
A. For that book, yes.
Q. When you say ':for that book," you have
other books that you receive royalty payments for?
A. Yes.
Q. How many others?
A. Could I look at the list?
MS. ZACK: Sure.
(Witness reviewed document.)
A. I receive a royalty payment from the book
publishing industry for a book called "The Culture
and Commerce of Book Publishing in the 21st Century";
for a book called "Access For All: Closing the Book
Gap For Children in Early Education"; for a book
called "The Media and Entertainment Industries"; and
three books were translated into Chinese where I
received a payment, and that took place, and I
believe that's all.

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Q. Are any of those other books included in
Google Books?
A. I believe "The Culture and Commerce of
Book Publishing in the 21st Century" is included. I
don't know about the others.
Q. Who is the publisher of that book?
A. Stanford University Press.
Q. Do you know how "The Culture and Commerce
of Book Publishing in the 21 st Century," how that
book came to be in Google Books?
A. I believe it's part of the publisher
program but I have never discussed it with anyone at
Stanford.
Q. For that particular book, in whose name is
the copyright?
A. Stanford University Press.
Q. Let me show you what was previously marked
as PX 91. "Google Books Partner Program Standard
Terms and Conditions."
Have you ever seen this before?
A. No.
Q. Referring you to the second page where it
says "Ad Payment."
A. Item 8?
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Q. Yes.
A. I see item 8.
Q. This talks about the payment and sharing
of ad revenues between Google and the partner.
You are not familiar with that?
MR. McGOWAN: Objection, vague. You may
answer.
A. I'm not familiar with this document or any
of the items in the document.
Q. Are you aware that Google scans books that
it receives from libraries; digitally scans books
that it gets from libraries?
A. Yes.
Q. Have you talked to any libraries that
participate in that scanning project?
MR. McGOWAN: Objection. Vague as it's
phrased. It might be useful to narrow that one.
Q. Do you understand the question?
A. I don't believe I have ever talked to a
librarian about that program. I have talked to
librarians but I don't believe about that program.
Q. Other than what you read in the materials
that you listed on Exhibit C to your report, is it
fair to say you don't have any information about the

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library scanning project that Google was engaged in?
A. I have read articles over the years in
Publishers Weekly about the program.
Q. Anything else?
A. It's possible it's been covered in the New
York Times or the Wall Street Journal. I couldn't
say definitively at this point. I think it's fair to
say I remember reading in Publishers Weekly, possibly
in any of the book industry daily blogs.
Q. Any other source of information about
that?
A. I can't remember any other source.
Q. There was a deposition in this case taken
of Paul Courant of the University of Michigan.
Did you read that?
A. Which number is that, please?
Q. It's not on your list.
A. These are the only documents.
Q. SO you didn't read that, Mr. Courant's
deposition?
A. No, these are the only documents that I
read through.
Q. Referring to page 3 of your report,
paragraph 7.

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A. I see it.
Q. The second line, there's a sentence that
starts "The Commerce Department, for example, tracks
slightly more than 3,000 publishing firms."
Are you referring to the United States
Department of Commerce?
A. Yes. It's cited in footnote 10.
Q. When you say "3,000 publishing firms," are
those U.S. publishing firms?
A. As far as I know, these are publishing
firms in the United States. They could possibly be
owned by foreign entities. These are publishing
firms operating in the United States.
Q. In that sentence where you say "tracks,"
what do you mean by "tracks"?
A. There's a federal law that in years ending
in '2 and '7, publishers have to submit confidential
information to the U.S. Department of Commerce. The
Department of Commerce collects, aggregates and
releases aggregated data about the book industry in
the United States. They have indicated that
approximately 3,000 firms participate in those
surveys that are done every five years.
Q. The next sentence of paragraph 7 of your

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report says "That 45,000 publishers participate in
Google's Partner program indicates that the Commerce
Department data reveal just the tip of the iceberg."
Are you aware that those 45,000 publishers
include publishers not in the U.S.?
A. I have never seen a master list of the
45,000 publishers. To be tracked by the Department
of Commerce, as I understand it, a company has to
have a federal ID number, at least one paid employee,
and its primary business has to be in publishing.
Q. Right. Now I am asking you whether you
are aware that the 45,000 publishers that participate
in the Google's partner program include foreign
publishers?
A. I have no knowledge about who is in that
45,000 database.
Q. Are you aware that the 20 million books in
Dan Clancy's declaration includes books published
outside the United States?
A. That's my recollection. I would have to
reread Clancy to verify that.
Q. I am handing you PX 1. PX 1 that I have
handed to you, Professor Greco, is the Declaration of
Daniel Clancy in Support of Google Inc.'s Opposition

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to Plaintiffs' Motion For Class Certification.
A. Yes, I see it.
Q. Referring to paragraph 4 which says
"Google has scanned more than 20 million books as
part of Google Books"; do you see that?
A. Yes, I do.
Q. Then it says "Users of Google Books can
see search results that include snippets of text in
English for more than 4 million of these books."
Do you see that?
A. I see that.
Q. Are you offering any opinions in this case
about whether or not it's infeasible to locate the
rights holders of 4 million books that are subject to
U.S. copyright?
A. I believe a search of that size would be
in many ways difficult.
Q. For the same reasons you previously
testified?
A. Yes, because you mayor may not be dealing
with 4 million authors, you may be dealing with more
than 4 million authors; coauthors.
Q. Referring you to the next page of your
report, page 4.

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A. I see it.
Q. This says in paragraph 9 "I have signed 12
3
4 book contracts and have obtained reversions of the
5 rights in my own books."
6
So you have reverted rights to 12 books,
7 is that right?
8
A. No. I have signed 12 contracts, and in a
9 few instances I asked for the copyright back when the
10 book was declared out of print.
11
Q. How many books have reverted back to you?
12
A. Can I look?
13
MS. ZACK: Oh, sure.
(Witness reviewed document.)
14
15
A. The first edition of "The Book Publishing
16 Industry" was originally signed with Simon &
17 Schuster. They sold it to Penguin PIc. They
18 declared it out of print. I asked for the copyright.
19 They gave it to me. I then took that material and
20 revised it to then Lawrence Erl Baum Associates. The
21 second one was "Advertising Management in the Book
22 Publishing Industry," originally published by NYU
23 Press. The third one was "Business Journalism," also
24 published by New York University Press.
25
Q. For the two that were published by NYU

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Q. Let's start with the last sentence.
What sales and marketing efforts were made
for your books?
A. It depended on the publisher. I have done
a number of books with university presses. So if!
go out and give a lecture at an institution, another
institution aside from Fordham, I might mention that
material was taken from book X or article Y,
depending on what was relevant.
If! do an interview with a reporter, I
might mention that I am the author of article X or
book Y, depending on what the article and the
reporter is interested in.
When you deal with university presses they
have for the most part limited resources. And in
some cases exceptionally limited resources. So an
author in that case would be expected to try to
publicize the book as best as he or she can. Often
at academic conferences or whatever the event would
be.
If you deal with what is called a
commercial scholarly publisher, for example Taylor &
Francis, Erl Baum, they have never paid for any of
those marketing efforts on my part. Even though they

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Press that were reverted to you, have you placed
those books into Google Books?
A. No.
Q. Or into the partner program?
A. No.
Q. Has anyone from Google ever asked you to
do that?
A. I'm not aware of any correspondence.
Q. Would you like for those books to be in
Google Books?
A. It wouldn't hurt. But they were done a
few years ago. I would probably want to update them.
Q. Paragraph 11 of your report that starts at
the bottom of page 4.
A. I see it.
Q. You say "As part of my scholarly study of
the book publishing industry, I have discussed sales
and marketing practices with over 50 academic
publishers and with large commercial publishers such
as Random House, Penguin, HarperCollins, Simon &
Schuster, Hachette, and Macmillan. I am of course
familiar with the sales and marketing efforts for my
books."
A. That's what is stated in item 11.

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may have more resources, it's just the nature of the
business. So that's what I have tried to do.
One other thing you can do is if you write
a book, let's say, in 2007, and you then write an
article in 2009 or 2010, you may cite it. That
citation could pop up somewhere in another book,
another article, et cetera.
There are various things you might do, and
these are the various things that I have done. I
have not published with -- I don't do trade books, so
I have not published with any of those what are
called the big six, the trade publishers in the
United States.
Q. You say you have discussed with them,
though, marketing?
A. Yes.
Q. Who specifically at Random House have you
talked about this issue with?
A. Over the years I have talked to Alberto
Vitale, Jack Hoeft. I have talked to the director of
research there. The name is Dave. I have to get
back to you about his last name. I have talked to -I have had two sons that worked at Random House.
Three, I am sorry. Three that have worked at Random

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House. One son is currently at Penguin. We had
discussions about this business. I have had lunch
with Peter Mayer when he ran Penguin. I have had
lunch with Michael Pietsch who runs Little Brown. If
you go to the Book Expo America, you run into these
people. I had another son that worked at Simon &
Schuster. I have had students who were working at
those houses or may have been placed as interns or
employees at those big six houses. Over a period of
time you meet a lot of people at these places.
Q. Have you discussed Google's library
project with any of those people?
A. Only when it came up with my sons because
it was public information in Publishers Weekly. I
don't believe I discussed Google with what you would
caIl a major executive at any of the big six. I may
have discussed it with some of the academic
university press publishers but just in passing.
People in this business meet and talk.
Q. Are you aware that Simon & Schuster was a
plaintiff or is a plaintiff in the case against
Google for their scanning of books without permission
for use in Google Books?
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Q. Where did you get that understanding?
MR. McGOWAN: Objection, asked and
3
answered. You may answer.
4
5
A. It was covered in Publishers Weekly. I
6 would have to assume it was covered in the New York
7 Times and the Wall Street Journal. It was cominon
8 knowledge I think in the book publishing industry in
9 New York City.
10
Q. Let's go back in time.
11
At the time that you believed that the
12 publishers were suing, which publishers did you
13 understand to be suing Google?
A. I never read any legal documents. I
14
15 relied entirely on newspaper and magazine articles,
16 so I couldn't say definitively which one or which
17 ones of the big six were involved in any litigation.
18
Q. Were you aware that the AAP sued Google?
A. Off the top of my head, I don't remember
19
20 that, but I am sure it was covered in Publishers
21 Weekly.
22
MR. McGOWAN: Again, you should offer your
23
best recoIlection if you have it. You should
24
not speculate.
25
THE WITNESS: I don'! remember.

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You may answer.
A. I am not aware of any publishing company
that is currently suing Google over the matter
related in Civil Action 05 CV 8136 (DC).
Q. Are you aware of any publisher that was
ever suing Google over that?
A. I am aware that certain publishers were at
one point, but not at the current time.
Q. Why do you say that they are not currently
suing?
A. The matter before me is the Authors Guild,
Incorporated versus Google. I have never seen any
document indicating that in this civil action that a
publisher is suing Google.
Q. WeII, I didn't ask you about this
particular civil action. The question was whether
you were aware that publishers were suing Google for
the same practices that are at issue in this
particular matter.
MR. McGOWAN: That question has been asked
and answered.
A. It's my understanding that at some point
in the past they were involved but not at the current
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Q. Do you have any information about the
nature of the claims made by the publishers against
Google?
A. No.
Q. Or any understanding of what claims were
made?
A. No. I haven't read anything lately. So
it was at some point in the past.
Q. Would it surprise you if! told you that
the publishers claimed that Google was violating the
Copyright Act by scanning books in libraries without
permission?
MR. McGOWAN: Objection. Lacks
foundation, relevance with respect to surprise.
He may answer.
A. If you are telling me that information, I
would have to assume you are telling me the truth. I
can't verify any of the issues that you are raising.
Ijust don't have that information. I never really
followed the case close enough to be able to respond
yes or no to your statement.
Q. Based on your understanding of the
publishing industry, you wouldn't be at all surprised
for publishers to sue Google for copying their books

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2 without permission, would you?
3
MR. McGOWAN: Same objection. It calls
4
for speculation. You may answer.
5
A. IfI went back an read the earlier
6 articles, I would be in a position to answer that
7 question definitively. At this point I just don't
8 have the information.
9
Q. Directing you to paragraph 14 of your
10 report.
11
A. Yes, I see it.
12
Q. The first sentence says "To get the
13 attention of consumers in this environment,
14 publishers often use some of a book's content to
15 promote the book and they do not pay royalties for
16 such uses."
17
A. I see that.
18
Q. That's been a fact for many years, hasn't
19 it?
20
A. It's a fact that goes back decades.
21
Q. That publishers don't pay royalties to
22 authors for promotion?
23
A. That's my understanding.
24
Q. Can you tell me any promotional uses of
25 books in the publishing industry that you are

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Publishing Industry" in which you have a copyright
interest, correct?
A. Yes.
Q. And in which your publisher has a
copyright interest, correct?
A. Yes.
Q. And in which I have no copyright interest?
A. You mean you personally?
Q. I have no copyright interest, right?
A. I'm not aware that you have any copyright
interest.
Q. Can I promote that book?
MR. McGOWAN: Objection, vague.
A. Sure.
Q. Without your permission?
A. Sure.
Q. I could put the entire book on my website?
MR. McGOWAN: Objection. Vague,
argumentative. You may answer.
MS. ZACK: I am asking a question.
MR. McGOWAN: Now you are distorting
language.
A. If you wrote a letter to a friend, if you
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and liked the book and encouraged your friends to
read it, I wouldn't necessarily know you did that.
Q. Well, let's say I posted the text, the
actual text of your book on my website and said "I
love this book," is that okay with you?
MR. McGOWAN: Objection, vague. You may
answer.
A. I would refer that to my editor.
Q. Has anyone ever done that to any of your
books?
MR. McGOWAN: Objection, vague. You may
answer.
A. I don't know.
Q. Do you know how Google makes money?
MR. McGOWAN: Objection, foundation. You
can answer.
A. It's my understanding that they make money
from a variety of business operations including
advertising.
Q. What are the other operations that you are
aware ofthat are moneymaking for Google?
MR. McGOWAN: Same objection.
A. I have never gone through their quarterly
reports, their annual reports, conference call

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familiar with that are done without the permission of
the rights holders?
MR. McGOWAN: Objection, vague. You may
answer.
A. Without the permission of the rights
holder?
Q. Yes.
A. Most of the research I have done has
centered on sales and marketing by publishers.
Q. Who were rights holders?
A. Not every author conveys the copyright to
the publisher. Some authors hold the copyright.
Q. Did you have an understanding that the
publishers had an agreement with the authors in the
cases where they were promoting the book?
A. It's my understanding if you convey the
copyright to the publisher, the publisher handles all
sales and marketing operations. So if the publisher
then decided to send out a galley print and/or
digital galley or post things in a company magazine
or website, they just do it. Except for the star
authors, the publisher really controls that
exclusively.
Q. Let's talk about your book. "The

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transcripts, so I really couldn't say.
Q. Do you consider Google a commercial
operation?
MR. McGOWAN: Objection, vague. It calls
for a legal conclusion. You may answer.
A. I believe it's a business incorporated in
the United States.
Q. Are you familiar with the Copyright
Clearance Center?
A. I have read about the Copyright Clearance
Center.
Q. What do you know about it?
A. I believe it's an organization. I believe
it's based in New England, and that they clear
copyrights for various publications.
Q. Are you aware of any licensing offered by
them on behalf of authors and publishers?
A. I have never looked into that matter.
Q. SO you don't know whether or not the CCC
offers collective licenses?
MR. McGOWAN: Objection, vague, to the
extent it calls for a legal conclusion, but you
may answer.
A. I never looked into it, so I really

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couldn't say yes or no.
Q. Are you familiar with ASCAP or BMI?
A. Yes, I am familiar with those two
entities.
Q. Has any of your research been in the music
industry?
A. I once coauthored a chapter on the radio
industry a number of years ago, so it's likely I may
have referred to them.
Q. Are you aware of any licenses offered by
the ASCAP or BMI?
MR. McGOWAN: Objection, vague. You may
answer.
A. Only in very general terms.
Q. What general terms are you aware of?
A. Well, ASCAP and BMI represent, as I
understand it, individuals that write music and
lyrics and music publishers, and that they work with
an organization called Harry Fox to collect fees
whenever a song is played or in the case of
synchronization fees when a song is used in a motion
picture, television, commercial, et cetera. That's
my understanding of those organizations.
Q. Have you ever done any research on the

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issue of possible licenses for digital copying of
books?
MR. McGOWAN: Objection, vague. You may
answer.
A. I don't believe so.
Q. Have you ever done any research on the
book purchasing practices of libraries?
A. I am familiar with those practices.
Q. Are you aware that libraries are currently
buying both print books and eBooks?
MR. McGOWAN: Objection. Lacks
foundation, vague and compound. You may answer.
A. Yes.
Q. Are you aware that libraries, including
university libraries, purchase licenses for scholarly
works?
MR. McGOWAN: Objection, vague. You may
answer.
A. Yes.
Q. Do you know if any of your works are
included in any such license?
A. Yes.
Q. Which works?
A. Bear with me for a second.

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(Witness reviewed document.)
A. I believe that the journal articles
published by the Journal of Scholarly Publishing; the
journal articles published by -- the journal article
published by Learned Publishing; I believe the
article published in the Journal of Cultural
Economics; I believe the article published in the
Journal of Media Management; I believe the articles
published in Publishing Research Quarterly or Book
Publishing Quarterly are available on various online
sites.
Q. Available as part ofa subscription?
MR. McGOWAN: Objection, compound. You
may answer.
A. I don't know what the terms and conditions
are.
Q. Do you not get any royalties for that?
A. I have never received a royalty for an
article.
Q. Do you have a right to receive royalties
for articles?
MR. McGOWAN: Objection to the extent it
calls for a legal conclusion. You may answer.
A. Perhaps if it's reprinted in an anthology,

I

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Greco
but that would be the only case, and I have never
received a payment based on an article in an
anthology.
Q. SO you have seen these general articles
that you have mentioned in an online subscription, is
that what you are telling me?
A. I have seen them in online services.
Q. But you are not aware of how they got
there?
A. I listed many different publishing -journal publishing operations, so I'm not aware of
those terms and conditions. But I have seen them on
Project Muse and elsewhere.
Q. Project Muse, and where else can you tell
me?
A. It's possible that it's been on Proquest.
It's possible it's on the Springer website. They
bought Publishing Research Quarterly and Book
Research Quarterly from Irving Horowitz. There could
be others.
Q. Referring you to your c. v. on page 25 of
PX92.
A. Yes, I see page 25.
Q. There is a heading "Papers Delivered

Page 68

1
Greco
2 Department of Labor, industry statistical data from
3 other reliable sources regarding the sale of books in
4 various retail channels. The sale of eReaders,
5 various types, et cetera.
6
Q. Is it your understanding that Google Books
7 includes both partner program books and library
8 project books?
9
A. I have looked at it as two separate
10 operations. The partnership program of 45,000 or so
11 publishers, and the library. I have never commingled
12 the two, although at times I may commingle them in a
13 presentation but they are really two very separate -14 as far as I know, two separate operations.
15
Q. They are both Google Books, though, right?
16
A. Right, but they have different parameters.
Q. But in your report when you refer to
17
18 "Google Books," you are referring to both, right?
19
MR. McGOWAN: Objection, vague. You may
20
answer.
21
Q. You say "I understand that Google has
22 scanned more than 20 million books in connection with
23 the Google Books project."
24
A. That's correct.
25
Q. When you refer to "Google Books," you are

Page 67

1
Greco
2 Before Scholarly and Professional Associations."
3 Then there's a entry for September 16, 2011, at The
4 Library of Congress. It says "Books in Our Digital
5 Future."
Is that your presentation, "Books in Our
6
7 Digital Future"?
8
A. Yes.
9
Q. Is that available online?
lOA. I don't know. It's possible the Library
11 of Congress has posted it. I don't know.
12
Q. What did you say generally; what was your
13 thesis?
14
A. I dealt with the growth in print books and
15 digital books over a period of time, and gave some
16 historical overview and some outlook on what was
17 happening in the digital book sectors in all of the
18 book categories; adult, juvenile, mass market, et
19
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cetera.
Q. And that was based on what type of
statistic?
A. Some of the statistical data came from the
U.S. Department of Commerce, Bureau of the Census.
Some of the statistical data came from other federal
agencies. U.S. Department of Education, the U.S.

Page 69

1
Greco
2 referring to both partner program and the library
3 project, correct?
4
A. In that sentence, yes.
Q. Is there any sentence in which that's not
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the case?
A. Well, on page 2, item number 5, I refer
specifically to the partner program.
Q. Right, I understand. But I am saying when
you use the term "Google Books," you are referring
both to the partner program and the library project,

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correct?
A. Yes. And I probably should have separated
the two in a more precise manner.
MS. ZACK: I don't have any more
questions.
MR. McGOWAN: I have two because I want to
make sure the record is clear on what Ms. Zack
was just alluding to.
EXAMINATION BY
MR. McGOWAN:
Q. Dr. Greco, you just said that you
understand the partner program and the library
project have different parameters, is that correct?
A. Yes.

18 (Pages 66 - 69)

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MS. ZACK: I object to the fonn.
Q. In the library program, do you understand
that Google copies books that are provided by
libraries?
A. Yes.
Q. With respect to that program, do you
understand that Google does not contact all, at
least, of the rights holders in connection with that
program?
A. That's my understanding.
Q. Did you understand that when you wrote
your report?
A. Yes.
Q. You testified as to steps that you
personally have taken to publicize your books.
In addition to steps that you have taken,
did your publishers do things such as distribute
copies to get reviews, that sort of thing?
A. That's my understanding.
Q. In paragraph 14 on page 5, you refer to
publishers using some of a book's content to promote
the book, do you see that?
A. Paragraph 14, yes, "to promote the book,"
yes, the first sentence.

Page 72

1
Greco
2 with Mr. McGowan during the break?
3
MR. McGOWAN: Objection, asked and
4
answered. You may answer.
5
A. We did discuss the library portion and the
6 publisher portion. The publisher program portion.
7
MS. ZACK: I have no other questions.
8
(Time noted 12:40 p.m.)

9
10
11
12

ALBERT N. GRECO

13
14 Subscribed and sworn to before me
15 this _ _ day of
,2012.
16
17 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
18
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NOTARY PUBLIC

Page 71

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Greco
Q. Is it your understanding that it is the
use of the book's content that is what gets the
attention of the consumers in this environment, which
is the beginning of the sentence?
MS. ZACK: Objection to form.
A. I believe it's almost always the book
content.
MR. McGOWAN: I have nothing further.
(CONTINUED) EXAMINATION
BY MS. ZACK:
Q. Are you aware of any books shown in Google
Books without permission of authors or publishers?
MR. McGOWAN: Objection, vague. You may
answer.
A. I believe the library portion.
Q. You believe what?
A. I believe the books that were scanned in
the library portion of Google Books mayor may not
have been done with prior permission.
Q. Did you discuss that topic with
Mr. McGowan during the break?
A. It may have come up just in passing.
Q. We have only been here a short time.
Did you or did you not discuss that topic

Page 73

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2

CERTIFICATE

3

4 STATEOFNEWYORK )
5
) S.s.:
6 COUNTY OF NEW YORK )
7
8
I, LINDA DEVECKA, a Notary Public
9
within and for the State of New York, do
10
hereby certify:
11
That ALBERT N. GRECO, the witness whose
I2
deposition is hereinbefore set forth, was duly
13
sworn by me and that such deposition is a true
14
record of the testimony given by such witness.
15
I further certify that I am not related to
16
any of the parties to this action by blood or
17
marriage; and that I am in no way interested in
18
the outcome of this matter.
19
IN WITNESS WHEREOF, I have hereunto set my
20
hand this 12th day of June, 2012.
21
22
23
LINDA DEVECKA
24
25

19 (Pages 70 - 73)
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Filed 08/03/12 Page 63 of 69

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-------------------- I N D E X -------------------WITNESS
EXAMINATION BY
PAGE
ALBERT N. GRECO MS. ZACK
4
69
MR. McGOWAN
MS.ZACK
71
--------------------- EXHIBITS -------------------PLAINTIFF'S
DESCRIPTION
FOR ID
Exhibit 92, document titled "Expert
4
Report of Professor Albert N. Greco May
3,2012"
The reporter retained the exhibit to annex to the
transcript.

25
Page 75

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ERRATA SHEET
VERITEXT REPORTING COMPANY
1250 BROADWAY
NEW YORK, NEW YORK 10001
800-362-2520
CASE: THE AUTHORS GUILD, INC. v GOOGLE INC.
DEPOSITION DATE: JUNE 6, 2012
DEPONENT: ALBERT N. GRECO
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MY COMMISSION EXPIRES:

20 (Pages 74 - 75)
212-279-9424

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A-846
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Filed 08/03/12 Page 64 of 69

Page 72

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Greco

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wi th Mr. McGowan during the break?

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4

answered.

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A.

6

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7

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MS. ZACK:

(Time noted 12:40 p.m.)

8
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ALBERT N. GRECO

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ERRATA SHEET
VERI TEXT REPORTING COMPANY
1250 BROADWAY
NEW YORK, NEW YORK 10001
800-362-2520
CASE: THE AUTHORS GUILD, INC. v GOOGLE INC.
DEPOSITION DATE: JUNE 6, 2012
DEPONENT:
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Filed 08/03/12 Page 69 of 69

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A-852
Case 1:05-cv-08136-DC Document 1053-8

EXHIBIT 42
PART 1

Filed 08/03/12 Page 1 of 26

A-853
Case 1:05-cv-08136-DC Document 1053-8

Filed 08/03/12 Page 2 of 26

Page 1
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**C 0 N F IDE N T I A L**

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF NEW YORK

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

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THE AUTHORS GUILD, et al. ,

CONFIDENTIAL

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Plaintiffs,
- against-

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Master File No.
05 CV 8136-DC

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GOOGLE, INC.,

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Defendant.

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

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June 8, 2012

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9:30 a.m.

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Deposition of JUDITH A. CHEVALIER,

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held at the offices of Milberg, LLP, One

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Penn Plaza, New York, New York, pursuant to

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Agreement, before NANCY SORENSEN, a Notary

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Public of the State of New York.

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Filed 08/03/12 Page 3 of 26

Page 2

2 APP EARANC E S:
3
BONI & ZACK, LLC
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Attorneys for Plaintiffs
15 St. Asaphs Road
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Bala Cynwyd, Pennsylvania 19004
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BY: JOANNE ZACK, ESQ.
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DURIE T ANGRI
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Attorneys for Defendant
217 Leidesdorff Street
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San Francisco, California 94111
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BY: DAVID McGOWAN, ESQ.
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17 ALSO PRESENT:
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ANY KEATING, ESQ. - GO OGLE
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SAMUEL WEGLEIN, Ph.D. - Analysis Group
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JUDITH A. CHEVALIER,
called as a witness, having been duly sworn by a
Notary Public, was examined and testified as
follows:
EXAMINATION BY
MS.ZACK:
(Plaintiffs Exhibits 95 and 96,
Expert Report of Judith A. Chevalier and a
number of pages collected from Google's
website concerning the Partner Program,
marked for identification, as of this
date.)
Q. Good morning.
A. Morning.
Q. Could you state your full name for
the record, please?
A. Sure, Judith Ann Chevalier.
Q. What is your current position?
A. I'm a professor at the Yale School of
Management.
Q. We have your CV which outlines your
various positions. I take it that's up to date;
is that right?
A. I think so, yes.
!

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IT IS HEREBY STIPULATED AND AGREED,
3 by and between the attorneys for the respective
4 parties herein, that filing and sealing be and
5 the same are hereby waived.
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IT IS FURTHER STIPULATED AND AGREED
7 that all objections, except as to the form
8 of the question, shall be reserved to the
9 time of the trial.
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IT IS FURTHER STIPULATED AND AGREED
11 that the within deposition may be sworn to
12 and signed before any officer authorized to
13 administer an oath, with the same force and
14 effect as if signed and sworn to before the
15 Court.
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J.A. Chevalier - CON F IDE N T I A L
Q. You've brought with you someone else.
Could you just tell us who that is?
A. Sure, that's Samuel Weglein. He's
from the Analysis Group.
Q. How do you spell his last name?
A. W-E-G-L-E-I-N.
Q. Did Mr. Weglein assist you with your
report?
A. Yes.
Q. Anyone else?
A. The staff of the analysis group, in
general, assisted with my report.
Q. What kind of assistance did they
provide?
A. So I drafted the report. But the
staff at Analysis Group helped with tracking
down references, wordsmithing, finding things.
Things like that.
Q. You've been retained by Google; is
that right?
A. Correct.
Q. Approximately when were you retained?
A. I think mid to late March.
Q. You've been retained as an expert;

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lA. Chevalier - CON F IDE N T I A L
correct?
A. Correct.
Q. What do you consider to be your area
or areas of expertise?
A. So economics, industrial
organization, and the economics of technology,
and competitive strategy, actually.
Q. Have you ever done any work for
Google before?
A. No.
Q. Have you ever done any work for any
search engine before?
A. No.
Q. Do you consider yourself an expert on
publishing?
A. No.
Q. Have you ever been retained by Durie
Tangri before as an expert?
A. No, I have not.
Q. By Keker Van Nest?
A. I worked on a case in which lawyers
from Keker were involved. But I wasn't retained
by Keker, I believe.
Q. Which case was that?

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Q. With respect to these five, did you,
you did provide a report in all five, you said?
A. Yes.
Q. Did you attend a deposition in all
these cases?
A. No, I attended a deposition in number
3, Presstek versus Creo, and in number five,
State Attorney General of New York.
Q. With respect to the first case, which
is the Procter & Gamble Company versus the
Coca-Cola Company?
A. Yes.
Q. Who engaged you there, which side of
the litigation?
A. Coca-Cola.
Q. What type of expert opinion did you
provide in that case, generally?
A. Yes, that was a patent infringement
case, and I calculated lost profits.
Q. Anything else other than calculating
lost profits?
A. I don't think so.
Q. What about the second case, which
apparently was an arbitration; correct?

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lA. Chevalier - CON F IDE N T I A L
A. Correct.
Q. It says, I guess that's SESAC, Inc.
versus Television Music License Committee?
A. Yes.
Q. Which side were you retained by?
A. SESAC.
Q. What does SESAC stand for?
A. I think technically it doesn't stand
for anything anymore.
Q. Okay.
A. They once did.
Q. What do they do?
A. They license perfonnance rights for
music.
Q. What expert opinion were you, did you
provide there, generally?
A. There, I was asked to provide an
opinion about the structure of the contract that
the television stations would receive from
SESAC.
Q. What was the nature of your opinion?
A. Well, I think that's under -- I mean
I believe it's under protective order. So, but
generally speaking, my opinion had to do with

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J.A. Chevalier - CON F ID EN T I AL
A. That was the State Attorney General
of New York versus Intel.
Q. We have pre-marked as PX 95 your
report, and here is a copy. I'm sorry, I don't
have copies for the others.
I think that we'll start by looking
at the list of your previous engagements, which
is Exhibit B, I believe, to your report?
A. Yes.
Q. This is a list within the past four
years; correct?
A. Actually, as I was reviewing this
yesterday, I noticed that I believe the prior,
the first three engagements are a little bit
older. I should have fixed that.
Q. Other than these five engagements,
have you been an expert in any other cases?
A. So these are the only cases where
I've filed reports.
Q. Have you consulted as an expert in
other cases?
A. I've consulted as an expert in cases
that have, you know, settled or, you know,
somehow ended before I filed a report.

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J.A. Chevalier - CON F IDE N T I A L
different -- yeah, I'm not sure exactly a good
way to say it, different type of contractual
fonns and the effect they would have.
Q. These were SESAC contracts?
A. Yes.
Q. In order to prepare that expert
report, did you study the market for the
licensing of music?
MR. McGOWAN: Object, foundation.
You may answer.
A. I studied, I studied -- the market
for licensing music is very complicated, and
there's a number of different pieces. I studied
a narrow piece.
Q. Just generally, what was the narrow
piece that you studied?
A. So perfonnance licenses for
television.
Q. SO perfonnance licenses for music on
television?
A. Correct.
Q. Number 3 on your list is Presstek,
Inc. versus Creo, Inc. Who engaged you there?
A. Creo.

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lA. Chevalier - CON F IDE N T I A L
Q. What is the nature of their business?
A. They make printing products. Well,
they may do other things, but the case involved
printing products.
Q. Generally, what was the nature of
your report in that case?
A. That was also a patent infringement
case, and I also calculated lost profits.
Q. Did you do regression analyses in
these cases where you calculated lost profits?
A. I think so.
Q. What was the -- I'm guessing that the
first case was a 2002 case, is that right, case
number one?
A. That's my -- I don't remember. But
that sounds approximately the right time frame.
Q. Referring you to number 4, Advanced
Micro Devices, Inc. versus Intel Corporation.
Who retained you there?
A. Intel.
Q. What was the nature of your opinion?
A. So that in that case, I provided an
analysis of how competitive strategies in the
market would succeed or fail in a but for

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lA. Chevalier - CON F IDE N T I A L
environment.
Q. Was it a patent case or -A. No, it's an antitrust case.
Q. Did you, in that case, opine on a
relevant market or -A. No.
Q. You didn't do damages in that case?
A. I did not.
Q. Case number five, is that another
antitrust case?
A. Yes.
Q. I take it you were retained by Intel?
A. Yes.
Q. Was your opinion the same there or
different than in the other Intel case?
A. It was a different report. And the
assignment was slightly different. But it was,
it was, you know, at a high level, it was the
same. It was to analyze the success or failure
of competitive strategies in the but for
environment.
Q. SO that was to assist the damage
analysis?
A. I think it might have assisted both

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J.A. Chevalier - CON F IDE N T I A L
liability and damages.
Q. Have you testified before Congress?
A. No.
Q. Have you written any articles on
copyright matters?
A. No.
Q. On patent matters?
A. No.
Q. Have you written any articles on
search engines?
A. No.
Q. On Google?
A. No.
Q. Amazon?
A. Amazon, I've written an article on
Amazon, yes.
Q. What about Microsoft?
A. No.
Q. What was your article on Amazon
about?
A. I have three.
Q. Um-hrnm?
A. Two of them were about loosely
estimating cross price elasticities between

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J.A. Chevalier - CON F IDE N T I A L
Amazon and Barnes & Noble in the book selling
market.
A second was about user reviews and
the effect of user reviews at Amazon and Barnes
& Noble.
Q. Right.
A. Actually, I have another paper that
used data from Amazon, so I don't know if you
want to count that. That used data from the
used book marketplace at Amazon.
Q. What type of data about used books?
A. Prices and sales. Well, I guess
prices, prices and attributes.
Q. Not sales?
A. No. They were, in all of these
cases, these weren't data that we received from
Amazon, it was data we collected from the
website.
Q. Any other articles that -- three or
four, I'm sorry, I thought you said there were
three.
Were you including this one that
you-A. So there were three about Amazon.

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A. Since I've written the report, I

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lA. Chevalier - CON F IDE N T I A L I lA. Chevalier - CON F IDE N T I A L
There were three that I would say were, you
2 discovery, or expert testimony and opinion in
3 this case."
know, explicitly more about Amazon, so -4
So as of now, having reviewed these
Q. The first one was the cross price
elasticity-5 additional materials, you have nothing to amend
6 or supplement?
A. There were two related to the cross
price elasticity.
7
A. Correct.
MR. McGOWAN: I just caution that you
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Q. SO you were retained mid to late
need to take turns speaking.
9 March?
A. Sorry.
lOA. Correct.
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Q. Did you talk to anybody from Google
Q. Just for the sake of the record.
12 in connection with writing this report?
A. Sorry.
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A. No.
Q. That's all right.
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Q. I take it you talked to Google's
Referring you to, do you have Exhibit
15 counsel; right?
C of your report, which is PX 95?
A. Yes.
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A. Correct.
Q. Is this a comprehensive list of
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Q. Did you talk to in-house counsel?
everything that you reviewed in connection with 18
A. No, I only talked to Mr. McGowan.
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your report?
Q. You didn't talk to any of the
A. I believe so, yes.
20 business personnel at Google?
Q. The first category here is legal
21
A. No.
filings, and you list various legal documents
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Q. Did you seek to talk to them?
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A. No.
from this lawsuit.
Since you've written the report, have
24
Q. Did you do any empirical research for
you reviewed any other documents?
25 this report?

reviewed deposition testimony from Bruce Harris
and Gloriana st. Clair.
Q. Anything else?
A. No.
Q. Did anything you read in those
depositions cause you to have any changes or
additions to your report?
A. No.
Q. You didn't read the reports of
plaintiffs experts?
A. Oh, I did, yes, sorry.
Q. Which reports did you read?
A. I read the report of Ben Edelman.
Q. Um-hmm?
A. And I read the report ofMr. Gervais.
Q. Did anything in those reports cause
you to have any changes or additions to your
report?
A. No.
Q. In paragraph 8 of page 2 of your
report, you say, "My work in this case is
ongoing, and I may amend or supplement this
report in light of new information, additional

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MR. McGOWAN: Objection, vague.
You may answer.
Q. Do you understand my question?
A. Yes. So, well, actually, let me
clarify your question. So do you mean did I use
any numbers for the report?
Q. Did you do any research involving any
review of data or numbers?
A. Yes.
Q. What research was that?
A. So we obtained a listing of members
of publishers that were members of the Partner
Program, and we compared that to -- I compared
that to -- I instructed my staff to find a list
oftop publishers in the U.S., and there's a
discussion in the report of a comparison between
those lists. So it's data that we used.
Q. Any other data?
A. There was data from the Partner
Program that I looked at.
Q. What type of data?
A. Data about the -- data about the
members of the Partner Program and the records
from the Partner Program.

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Q. What do you mean by records?
A. So there's a listing of the partners
and their relationships over time, and the
payments.
Q. What type of payments?
A. Payments relating to the Partner
Program. So payments to the partners.
Q. Anything else? Any other data?
A. No, I don't think so.
Q. You didn't personally do any analysis
of Google's costs in connection with either the
Partner Program or the Library Project?
A. No, I did not.
Q. Is the data that you looked at
included in the list that is Exhibit C to your
report, the data you just referred to?
A. I think so. Let me check exactly how
that -- well, the, the Nielson BookScan Report
is included. I don't, as I see here, see the
list of participants in the Publishers Program
included, though it may be included by reference
in another piece.
Q. What about the data about payments?
A. So that's the same data source. Yes,

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J.A. Chevalier - CON F IDE NT I A L
that's the piece that I don't see here, as I sit
here. Though, it I may be forgetting where it's
put.
RQ
MS. ZACK: If that data has not been
produced to plaintiffs, I would request
that it be produced.
MR. McGOWAN: It has been produced.
MS. ZACK: Are you talking about
particular PX's or documents with Bates
numbers?
MR. McGOWAN: It's a Bates labeled
document.
MS. ZACK: Can you amend, tell me
what the numbers are, so we can amend this,
and I can know what we're referring to.
MR. McGOWAN: Perhaps at the break if
you give me a moment.
MS. ZACK: Yes, sure. I'm not asking
you to do it this second.
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MR. McGOWAN: I understand.
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Q. You say in your report that you had a
conversation with Bruce Harris; is that correct?
A. I did.
Q. That was over the telephone?

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J.A. Chevalier - CON F IDE NT I A L
A. Yes.
Q. Was that at your request?
A. Yes.
Q. How long was that conversation?
A. I don't recall precisely. I would
say on the order of a half an hour.
Q. Did you take notes?
A. I don't think so.
Q. SO you didn't take any notes?
A. No.
Q. What did he tell you?
A. I asked about common practice in the
industry, and I asked about advice he would give
his clients.
Q. Anything else?
A. Not that I recall.
Q. You asked him about common practice
in the industry about what?
A. So I asked him about common practice
about the use of excerpts to promote books.
Q. Anything else? Any other common
practices?
A. We discussed, in general, the
difficulty in the industry of being found, of a

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lA. Chevalier - CON F IDE N T I A L
book being found by readers.
So, and the common practices in the
industry for publishers to help their books
reach readers.
Q. Anything else about common practices?
A. That's what I recall.
Q. You asked him about advice he would
give his clients, and that was on what subjects,
advice he would give them on what subjects?
A. So I asked whether he would encourage
clients to make their books available to
programs like Amazon Search Inside the Book or
other programs that would display parts of the
book to consumers.
Q. You asked him about whether he would
encourage his clients to make their books
available in Amazon Search Inside the Book.
Did you ask him about whether he
would encourage his clients to make their books
available in Google Books?
A. Yes. I did similar, yes.
Q. Anything else?
A. That's what I recall.
Q. What did he tell you about whether he

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would or wouldn't encourage his clients to make
their books available in Amazon Search Inside
the Book?
A. So my recollection is that he
answered that he would encourage his clients, in
general, to make their books available in a wide
variety of platfonn that would allow customers
to see the book. So including Search Inside the
Book.
Q. Did he specifically say he encouraged
the use of Search Inside the Book by his
clients?
A. I don't recall whether I asked him if
he did encourage his clients or whether he would
encourage his clients.
I asked, I believe I asked if his
clients were seeking advice, would he encourage
them to make the book available to programs,
such as Google Books or Amazon Search Inside the
Book, and he answered that he would.
Q. SO you didn't ask him whether he
actually did it, you just asked him whether you
would do it?
A. I can't recall, but I believe that's

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correct.
Q. You didn't care about whether he
really did it?
MR. McGOWAN: Objection,
argumentative.
You may answer.
A. I believe I asked what type of advice
he would give his clients, and I don't believe I
clarified whether that was advice he had given
his clients or whether that was advice that if a
client asked, he would give.
Q. SO did your conversation with him
form the basis of any of your conclusions?
A. My conversation with him contributed
to my conclusions. Though, I also relied, you
know, on his reports and the other reports.
My conversation with him was not the
sole basis of any conclusion.
Q. I'm just talking about the subject
matter of industry custom and practice.
What were the bases of your
conclusions about that subject matter?
A. Oh, so more generally, is your
question more generally in the report, what are

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J.A. Chevalier - CON F IDE N T I A L
the bases of my conclusions about industry
practice?
Q. Right. You cite Mr. Harris quite
extensively.
A. I do. So my conversation with
Mr. Harris, Mr. Harris's report, Mr. Greco's
report, Mr. Aiken's deposition, Mr. Zohn's
deposition, and Mr. Perle's deposition and
report, all contributed to my understanding of
practice in the industry.
Q. Anything else?
A. So there are other materials I cite
that are related to practice in the industry,
but I would say the ones I described were the
main ones.
Q. What other materials that you cite
were relevant to that issue?
A. So, for example, I cite here -Q. Can you just tell me the page?
A. Sure. I'm sorry, the page is not
numbered, but towards the end of Appendix C,
Publicly Available Sources.
For example, I quote an industry
practitioner from the Investors Business Daily

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article, and that's in the report.
These iUniverse citations, for
example, have to do with -- they're mostly in a
footnote, but have to do with promotional
practices in the industry.
These are the ones that I notice,
offhand. For example, well, this is "Amazon
announces the first publicly available source.
Amazon announces sales impact from new Search
Inside the Book features." There's some
information that, that I used to describe
practice in the industry.
Q. Okay, now you've read Mr. Harris's
deposition?
A. I have.
Q. You saw that he said that he had
never actually advised any clients to put their
books in the Google Partner Program?
A. Yes.
Q. Does that affect your analysis in any
way?
A. It doesn't affect my analysis,
because my understanding from my conversation
with him and my understanding from my -- from

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J.A. Chevalier - CON F IDE N T I A L
his report, and my understanding from his
deposition, and my understanding from the other
materials that I relied on, was that, in
general, he and many of the other industry
practitioners that I'm referring to, as a
general practice, encouraged authors or
publishers to participate in any programs that
had the feature of allowing consumers to find
their books through excerpts.
Q. SO you understand that it's the
general practice in the publishing industry for
publishers to allow their books to be placed in
search engines without permission?
MR. McGOWAN: Objection, misstates.
Q. Is that your understanding?
A. That's not what I said.
Q. Well, do you understand that to be
the practice?
A. What I understand to be the practice
is that it is common, it is common practice in
the industry for publishers to make excerpts
available through a variety of programs.
Q. Amazon within Search, Amazon's Search
Within the Book is by permission; correct?

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1 J.A Chevalier - CON F IDE N T I A L
2
A. Correct.
3
Q. Partner Program is by permission?
4
A. Correct.
5
Q. Are you aware of any programs, other
6 than the portion of Google Books that we call
7 the Library Project, that involve the placement
8 of books that are in copyright into search
9 engines, without permission?
lOA. I think -- could you clarifY what you
11 mean by placement into search engines?
12
I mean, so, for example, reviews
13 contain excerpts of books, and excerpts of books
14 are therefore, you know, found in search
15 engines. But I don't think, I don't know if
16 that's your question.
17
Q. Are we talking, is your report about
18 Google's search engine or about Google Books?
19
A. My report is about Google Books, but
20 you asked about search engines.
21
Q. Are you aware of any book search
22 engine in which books have been placed without
23 permission, in copyright books, other than in
24 Google Books?
25
A. So I guess what I'm trying to get at

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is I think you mean by that, where the full text
of the book has been placed in the search
engine.
Q. No, I don't mean that. I mean text
of the books.
MR. McGOWAN: : Asked and answered.
MS. ZACK: No, it isn't.
Q. Let me ask it a different way.
A. Okay.
Q. You tell me every search engine where
you understand that books are available by
search, for search?
A. So again, my question, my -- why I
don't completely understand your question is
when you say books are available for search, do
you mean the entirety of the book is available
for search?
Q. Yes.
A. Okay, then I can answer your
question.
Q. Okay.
A. So I believe that Google Books is the
only program, that I'm aware of, that has that
feature.

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Q. What portion? It's not in the
Partner Program that has that feature; correct?
MR. McGOWAN: Objection, vague.
Q. Does Google Partner Program allow the
search of the full book?
A. My understanding is that the Google
Partner Program, that -- I believe that books in
the Google Partner Program can be searched, so
that when a search term that the consumer uses
is found in the book, the book will appear.
Q. That's by permission; correct?
A. That is by permission; correct.
Q. The same for Amazon Search Within the
Book?
A. Correct, that's by permission.
Q. Are you aware of any other search
engine that searches the entire book by
permission?
A. No.
Q. The only search engine that you are
aware of that searches the entire book, without
permission, is Google Books?
A. Correct.
Q. As to Google Books, it's only books

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1 J.A. Chevalier - CON F IDE N T I A L
2 to allow entire books to be searched on search
3 engines, without permission of copyright owners;
4 are you?
5
A. I guess since you've used the term
6 "allow" and "without permission" in the same
7 sentence, I'm finding it very difficult to
8 answer this question.
9
Q. You can't answer the question? All
10 right, let me hear it restated, and I'll restate
11 it.
12
(The record was read.)
13
Q. You can't answer that question?
14
A. I can't answer that question.
15
Q. You're not opining here that there is
16 a custom and practice in the publishing industry
17 whereby publishers pennit, without permission,
18 their books to be searched in search engines,
19 their entire books to be searched in search
20 engines?
21
MR. McGOWAN: Objection, vague.
22
Q. Can you answer that?
23
A. I'm sorry, so you're asking me
24 whether publishers permit, without permission, I
25 just, I can't, I don't understand what you mean

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1 J.A. Chevalier - CON F IDE N T I A L
2 that were copied in the Library Project that had
3 that feature, correct, of being without
4 permission?
5
A. Correct.
6
Q. Do you think a sample of one
7 establishes a custom and practice?
8
MR. McGOWAN: Objection, vague.
You may answer.
9
lOA. So your question was not about
11 permission. Your question originally -- I guess
12 I don't understand your question.
13
Q. I will rephrase it because I did, you
14 know, segue a little bit further back.
15
Do you think that having one search
16 engine that displays without permission -- or
17 searches, excuse me, without permission the
18 entire book, establishes a custom and practice
19 in an industry?
20
A. I haven't -- I described to you the
21 custom and practice in the industry with regard
22 to making promotional materials available. So I
23 guess I don't understand your question.
24
Q. SO you're not opining that there's a
25 custom and practice in the publishing industry

Page 33

1 J.A. Chevalier - CON F IDE N T I A L
2 by that.
3
Q. You don't understand the concept of
4 permission in publishing?
5
A. I do understand the concept of
6 permission in publishing.
7
Q. Well, why don't you tell me what that
8 is then? What do you understand about
9 publishing permission?
lOA. So I understand that, for example, in
11 this case, publishers permit Amazon Search
12 Inside the Book to search inside the book.
13
And I also understand that publishers
14 permit the Google Partner Program to Search
15 Inside the Book and to display excerpts of the
16 book, so I understand that.
17
And I understand that the publisher,
18 yes, I understand that the publisher gives
19 permission for those programs.
20
And I understand that the books in
21 the Library Project have not received that
22 permission.
23
Q. You can't tell me any other search
24 engine that searches the entire book, that does
25 so without permission; correct?

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lA. Chevalier - CON F IDE N T I A L
MR. McGOWAN: Asked and answered.
You may answer.
Q. Correct?
A. Correct.
Q. SO what I'm asking you is from all
7 that information, do you discern a custom and
8 practice with respect to the placement and
9 search of in copyright books in Google Books?
lOA. By custom and practice, it is my
11 understanding that publishers in a wide variety
12 of formats and authors, encourage sampling from
13 their books.
14
I also understand that the Google
15 Books provides sampling from the books.
16
Q. SO do you understand from any source
17 that publishers and authors encourage sampling
18 of their books in search engines that display or
19 search entire books without a copyright
20 permission?
21
MR. McGOWAN: Objection. Vague and
22
compound.
23
You may answer.
24
A. Sorry, can you repeat that?
25
MS. ZACK: Please re-read it.
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Q. Have you asked anyone whether that's
true or not?
A. I have not.
Q. You didn't ask Google?
A. I imagine there may be books that
they don't place in the Partner Program, but I
didn't ask.
Q. SO you imagined that a publisher
might make a choice not to put certain books
into the Partner Program; correct?
A. They might.
Q. Why might they not do that?
MR. McGOWAN: Objection. Calls for
speculation.
You may answer.
MS. ZACK: She said she imagined.
A. Yes, so I concede that it is possible
that publishers may not put all of the books in
the partner Program.
But I have not investigated whether,
to what extent that is true or why that might
be.
Q. You don't think that's relevant to
your report?

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(The record was read.)
2
A. So I think perhaps the difficulty
3
4
here is that the permission is, the -- as I
explained in my report, the getting noticed of
5
6
the book, the advertising, the creation of
awareness, is the economic construct in which,
7
you know, publishers and authors have an
8
interest.
9
10
They give permission for that in many
circumstances. But it's not, it's not the
11
giving of permission that creates value for
12
them. It's the advertising of the book.
13
14
So I understand that -- what I
understand, my inference from the Google Partner 15
Program, is that when given an opportunity to
16
17
provide more materials, have a greater display
of the book, many publishers, all of the large
18
19
publishers in the U.S., have found that to be a
valuable opportunity.
20
21
Q. Do you understand that all the
22
publishers who are members of the Partner
23
Program, allow all their books to be placed in
24
the Partner Program?
25
A. I don't know that they do.

Page 37

l.A. Chevalier - CON F IDE N T I A L
A. I investigated the participation of
publishers in the Partner Program. I do not
know of -- I do not know of books that are
exceptions to that program, you know.
Q. If! told you that there were, would
that change your analysis?
A. If you told me that there were some
exceptions, that would not change my analysis.
If you told me that, if you told me
that -- yes, if you told me there were some
exceptions, that would not change my analysis.
Q. Suppose I told you that 30 percent of
the books aren't put in the Partner Program,
would that change your analysis?
A. No.
Q. How about 50 percent?
A. No.
Q. Seventy percent of the books?
A. If you told me that the publishers
who are participating in the Partner Program -I mean I recognize not all publisher participate
in the Partner Program.
If you told me that of the publishers
that participate in the Partner Program, they

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chose to keep 30 percent of -- sorry, chose to
keep 70 percent of new books out of the Partner
Program, that might change my -- that would
change my analysis.
Q. It might or it would?
A. I would have to think about it. I
think it would. Now I note that I think that's
true, there are some cost to publishers of
participating in a Partner Program.
So I would have to think about
exactly -- I would have to think about it, you
know. I think what I say is true for, you know,
new books being created by the publisher.
Q. Well, you haven't talked to
publishers about why they put their books into
the Partner Program; have you?
A. I haven't talked to publishers about
why they put their books into the Partner
Program.
Though some of the material in my
report discusses, you know, why my understanding
from industry practice, about why publishers put
their books in the Partner Program.
Q. Is it your understanding that

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with the bookstore. They, you know, as
described in Mr. Harris's report, you know, they
create blads, they create, you know, sample
chapters. Things like that.
Q. Anything else?
A. I think there's a myriad of things
that they do that are described in the reports.
But I'm, you know, I'm not an expert in
publishing marketing.
Q. Is there any value to a copyright
owner in the copyright?
MR. McGOWAN: Objection.
Q. From an economic point of view?
A. Is there a value to the owner in the
copyright?
Q. Yes.
A. So by that you mean is there monetary
value to the copyright?
Q. Economic value of any type.
A. Well, okay, so by economic value, I
think I would take that to mean monetary value.
And I would say there certainly are for some
copyrights.
Q. You don't think there's any other

J.A. Chevalier - CON F IDE N T I A L I
2
publishers want to control the publicity for the
3
books that they have published?
4
MR. McGOWAN: Objection, vague.
5
You may answer.
6
A. My understanding is that publishers
allow a wide variety of sampling with different
7
degrees of control over what that sampling
8
9
involves.
10
For example, books are reviewed
without the publisher's permission. And they
11
don't control whether the book is reviewed or
12
13
the nature of reviews.
14
Consumers browse books in bookstores
and sample. The publisher doesn't control which 15
parts of the book the consumer reads or how
16
17
much.
So there are pieces of the marketing
18
19
of the book that the publisher controls, and
20
there are pieces of the marketing of the book
21
that the publisher does not control.
22
Q. Which pieces does the publisher
23
control, to your knowledge?
24
A. So, to my knowledge, the publisher
controls, you know, co-marketing arrangements 25

J.A. Chevalier - CON F IDE N T I A L
value, other than monetary value, in owning a
copyright?
MR. McGOWAN: Objection, misstates.
You may answer.
A. So there's, you know, economic value
would be the monetary value of the copyright or
the possible future monetary value created by
the copyright.
Q. Does the copyright basically give the
owner of the copyright a monopoly?
A. Well, the copyright gives the
copyright owner a -- not a monopoly in the
antitrust sense, but exclusive rights to the
copyrighted work, subject to the limitations in
the copyright law.
Q. From an economic sense, is it a
monopoly?
MR. McGOWAN: I obj ect. It's very
compound, but you may answer.
A. So is the copyright a monopoly?
Q. Um-hmm.
A. So I think in order to answer that
question, you would first have to ask the
question of whether the copyrighted goods

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1 J.A. Chevalier - CON F IDE NT I A L
2 constitutes a market over which we can normally
3 use the term monopoly.
4
So copyrighted works compete with one
5 another. So in that sense, I don't think I
6 would -- I would not use the term monopoly as an
7 economist.
8
Q. SO you would agree that the copyright
9 provides some value, in an economic sense, to
10 the copyright owner, but you limit it to
11 monetary value; is that what your testimony is?
12
MR. McGOWAN: Objection.
13
A. I have -- you asked me actually about
14 economic value?
15
Q. Right.
16
A. The economic value is the monetary
17 value created by the copyright, and the
18 potential future monetary value created by the
19 copyright.
20
Q. Referring you back to your report,
21 which is PX 95, referring to you page 2.
22
Page 2, paragraph 6, you state, "I
23 understand that plaintiffs, three individual
24 authors and the Authors Guild, allege that
25 Google, Inc., ("Google") has infringed the

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A. So I consider myself an expert in the
areas that I've told you, competitive strategy,
industrial organization and economics. You
know, copyrights playa role in that, but I'm
not a -- for example, I'm not a legal expert in
copyrights.
Q. Well, with respect to copyright
specifically, is there some area of copyright,
that concept, that you do consider yourself an
expert in?
A. So within the area of copyright, a
copyright, a copyright is a, is an input to an
economic process.
And I'm an expert in industrial
organization, and so to the extent that, you
know, copyrights and perhaps they playa
particular role in the economics of technology.
So I'm an expert in -- I'm an expert
in the economic processes that use copyrights,
but I'm not a specific expert in copyright law.
Q. Both of these types of industrial
organizations and technology involve a lot of
different subject matter; right?
A. Correct.

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1 lA. Chevalier - CON F IDE N T I A L
2 plaintiffs' copyrights by scanning and indexing
3 several million books as part of its Google
4 Books project, ("Google Books"), as well as by
5 making certain related uses of those works, such
6 as displaying snippets."
7
Where did you get that understanding?
8
A. So that's my understanding from the,
9 for example, the complaint.
10
Q. Anything else?
11
A. Sorry, what is your question?
12
Q. Did you get that understanding from
13 anything other than the complaint?
14
A. You know, I think that, you know,
15 that this is the controversy is, you know,
16 probably, it's most notably in the complaint.
17 But any of the legal filings, you know, have
18 some discussion of that.
19
Q. SO you understand this is a copyright
20 case; right?
21
A. I do.
22
Q. You don't consider yourself an expert
23 in copyright; do you?
24
MR. McGOWAN: Vague.
25
You may answer.

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I J.A. Chevalier - CON F IDE N T I A L
2
Q. You could apply them to various
3 different subject matters, including copyright;
4 correct.
5
A. Correct.
6
Q. But you don't consider yourself an
7 expert on all these subjects that you might
8 apply your area of expertise to; do you?
9
MR. McGOWAN: Objection, vague.
lOA. So I've already answered that I'm not
II an expert in the legal theory of copyright. I
12 am an expert in industrial organization, which
13 is the study of competition in markets, to which
14 copyrights and other forms of intellectual
IS property are an important input.
16
Q. Is your report at all about
17 industrial organization here?
18
A. Yes, my report is about, yes. The,
19 yes, my report is about industrial organization.
20
Q. In what sense is your report about
21 industrial organization?
22
A. So, for example, my report discusses,
23 my report discusses the topic of whether Google
24 Books is a new good. And that is a topic -- the
25 study of new books is a -- sorry.

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Q. New goods?
A. Strike that. New goods is a study,
an important area of study in industrial
organization.
I discuss whether Google Books, the
services provided by Google Books are a
substitute or a compliment for the purchase of
the book. That is also an area of industrial
organization.
Q. When you discuss those topics in this
report, did you include or make any special
allowances for the fact that this product that
you're studying is a, has a copyright, which
distinguishes it from a lot of goods in the
marketplace that don't have that legal
protection?
MR. McGOWAN: Objection, foundation.
You may answer.
MS. ZACK: I should restate it.
Q. When you wrote your report, you were
writing about books. In this case, we're
talking about copyrighted books which have a
certain legal protection.
A. Yes.

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you know, recognize that the products are -that the books are copyrighted, but my analysis,
and my analysis, you know, understands that
those products are copyrighted, but the
opinions, the opinions are opinions about their
relationship of the product to other products in
the marketplace.
Q. Have you ever done any reports where
you've analyzed barriers to entry in markets?
A. Expert reports for academic -Q. No, any kind of academic writing on
barriers to entry?
A. Sure, I have.
Q. If you wrote about barriers to entry
in a market, would you consider the effect of
regulation?
A. Sure, of course.
Q. Would you consider the effect of
patents and copyrights?
A. Yes.
Q. SO you would consider that in that
analysis to barriers to entry; correct?
A. Yes.
Q. Going back to paragraph 6, you make

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no specific mention in paragraph 6 about the
distribution by Google to libraries of entire
digital copies of books?
A. I do not mention the library copy
here.
Q. Is there a reason why you don't
mention that?
A. So I, I mention the scanning. And my
understanding is the scanning -- my
understanding is that Google has made the scan,
and they have allowed libraries to download that
scan, if they choose to do so.
So I understand, I understand that
the issue of the library copy, but I would, I
would, in paragraph 6, the issue of the library
copy, to me, is encompassed in the term scanning
that I've used.
Q. SO Google's giving the library a
copy, you understand; is that right?
MR. McGOWAN: Objection.
Q. You understand that that occurs?
A. I understand that Google provides
facilities from which the library can, if they
choose, to make a copy.

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2
Q. Which distinguish these goods, these
3 books, from many other goods that you could
4 study in industrial organization.
5
Does your report take account of
6 that?
MR. McGOWAN: Objection.
7
Q. And if it does, how so?
8
MR. McGOWAN: Objection, compound.
9
l O G o ahead, you may answer.
11
A. So my report, my report -- I might
12 have to go vague. My report discusses the-13 let's see, my report discusses the question, for
14 example, whether or not Google Books is a new
15 good.
16
And I understand that, and I think I
17 discuss, that an input to the production of that
18 new good is the copyrighted works that are
19 searched.
20
Q. Right, but you don't discuss any
21 ramifications of the fact that there is a
22 copyright for the works; right?
23
A. That's, that's not, it's -- let me
24 see. I think, you know, the questions that I
25 answer in the report, the issues that I discuss,

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Q. Have you read the agreements between
Google and the libraries?
A. I think I have not. I have read the
deposition of -- I'm not sure I can pronounce
it.
Q. Paul Courant?
A. Well, I have read the deposition of
Paul Courant, which discusses that issue, but
I've also read the deposition Stephane
Jaskiewicz, which discusses that issue.
Q. You haven't read the actual contracts
between Google and its library partners?
A. No.
Q. Google has contractually agreed to
provide digital copies to the libraries; are you
aware of that?
A. As I said before, my understanding
from these materials that I've just described to
you, is that Google has provided the facilities
from which the libraries can make a copy.
Q. What do you mean by providing the
facilities?
A. So my understanding is that the
libraries can download a copy, if they choose to

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do so.
Q. But you don't understand that
Google's contractually obligated to allow them
to download the books?
A. Yes, I understand that Google does
allow them to download the books, and that's -and I understand that that's part of the
agreement with the libraries.
Q. Because there's a difference between
allowing someone to do something and having a
contractual obligation to do it; isn't there?
MR. McGOWAN: Objection.
Q. As a matter of economics?
MR. McGOWAN: Objection to the extent
it calls for a legal conclusion.
A. So I'm not a legal expert. My
understanding is that Google has agreed to make
the facilities available to the libraries so
that they can download a copy, if they choose to
do so.
MR. McGOWAN: We have been going a
little over an hour.
MS. ZACK: If you want to take a
break.

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(Brief recess taken.)
FURTHER EXAMINATION
BY MS. ZACK:
Q. Paragraph 7 of your report -- I'm
sorry, before I get to paragraph 7, I wanted to
ask you something about flipping further back in
your report to page 15?
A. Um-hm111.
Q. If you look at your footnote 64, do
you see that?
A. Yes.
Q. You talk about "The preceding
analysis," do you see where I am?
A. Um-hmm.
Q. "The preceding analysis suggests that
such a market could only be created by law
because the relevant economic principles would
not sustain it otherwise"; do you see that?
A. Yes.
Q. Those relevant economic principles,
are those the same principles you discuss
elsewhere in your report or are they different
principles?
A. So those are the economic principles

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that I discussed from point -- all of section,
the section labeled B starting on page 14.
Q. SO you're not referring there to any
additional economic principles, other than the
ones you've otherwise described in your report;
that's just what I want to know; right?
A. Right.
Q. SO the answer is you're not referring
to anything outside the report?
A. I am -- right. I'm referring to the
preceding analysis, which actually perhaps
preceding is a poor choice of words, because I'm
referring to the analysis in points 48 to 54.
Q. Going back to paragraph 7 on page 2,
it's a summary of your conclusions.
It says, "I conclude based on the
evidence I have seen, that: (1) Google Books is
new good - it provides benefits to consumers
that previous goods did not."
When you use the term "Google Books"
there, are you saying that Google Books itself
is a new good?
A. I am saying Google Books itself is a
new good.

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Q. SO that includes both the Partner
Program and the Library Project?
A. It includes all of the elements of
Google Books.
Q. Ifwe took Google Books and put it
into the two categories, the Partner Program
first, is the Partner Program a new good?
A. Do you mean the product Google Books
implementing only books, only the Partner
Program, but not the other books?
Q. Yes, let's just say hypothetically,
Google Books only included Partner Program
books, would that be a new good, in your
opinion?
A. That would be a new good, but it
would be a good of lower value to consumers than
the totality of Google Books.
Q. Is Amazon Search Within the Book, a
new good?
A. I haven't analyzed that.

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A. So, in other words, if you took the
45,000 partners in the most recent year, and you
asked what's the total amount of revenue they
received, the mode, the most frequent number.
Q. Oh, the modal partner?
A. Modal, yes. The mode would be zero.
Q. SO you're saying the fact that ad
revenues are shared, doesn't playa large role
in your analysis.
Does it play any role in your
analysis?
A. As I just said, I considered it. But
I decided since the ad revenues are small, they
don't playa substantial role in my analysis.
Q. That's what I'm trying to say. What
23 role do they play? You didn't say it plays no
24 role, so what role does it play?
25
A. I -- I evaluated the Partner Program
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J.A. Chevalier - CON F IDE N T I A L
2 and detennined that the ad revenue, for most
3 partners, the partner would have to gain
4 substantial benefits from being in the program,
5 apart from the ad revenue, in order to
6 participate. Because for the typical partner,
7 the ad revenues are zero.
8
Q. Is that because nobody is clicking on
9 the books?
lOA. No, I don't think that's right.
11
Q. How do the partners get revenue in
12 the Partner Program, the publishing partners get
13 revenue?
14
A. My understanding is they get revenue
15 if they click on -- if, if consumers click on
16 ads.
17
The publishing partners, of course,
18 also get revenue if the consumer goes and buys
19 the book.
20
Q. Is it your understanding that the
21 publishing partner gets any revenue from the
22 Partner Program, if someone clicks on the Amazon
23 link?
24
A. So my understanding is that the
25 partner gets revenue -- I would actually like to

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double-check this because I would like to get
this right.
But my understanding is that the
partner gets revenue only as it might flow
through the Amazon transaction, if the consumer
buys the book.
Q. SO they get revenue from Google?
A. My understanding is they do not.
Q. Well, all right, now I'm confused.
It's not your understanding that Google is
paying ad revenues to partners when books are
purchased at Amazon; are you?
A. It's my understanding that Google is
paying ad revenues to partners when consumers
click on ads.
Q. Is the Amazon link considered an ad?
A. My understanding is that it is not.
Q. Where did you get that understanding?
A. So that's my understanding from the
materials I cite here regarding the -- this is
my reading of the description of the Google
Partners Program that are cited in my report.
So I cite the Google Partner Program
description pages on the Google website, and

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are from the Partner Program website. But
roughly speaking, these are what I've seen.
Q. Did you look at the Partner Program
contract that was on-line?
A. Yes, previously.
Q. Let me hand you what's been
previously marked as PX 91.
Have you seen this before?
A. Ithink so, yes. I believe this is
the standard downloadable one, correct.
Q. Yes. So can you just show me, in
these documents, where you gained your
understanding as to how and on what basis
partners receive funds from Google?
A. So in item 96-Q. PX 96?
A. -- PX 96, that includes a summary.
On the preview page for your book, we display a
set of links to buy the books at the major
retailers, as well as to a site of your choice.
These links are not paid for by the
site features. Clicking on a link to purchase
your book at an on-line retailer, won't generate
any revenue directly.

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So that, that's, so that's one piece
of it. And then my understanding is Section 8,
ads payment.
"You agree that Google may serve
third-party andlor Google provided
advertisements, collectively ads, in connection
with the authorized content using Google's
advertising serving technology. Such ads will
appear in the style and format that may be
offered generally by Google when such
advertising inventory is available.
"You shall receive a payment related
to the number of valid clicks on ads displayed
on content excerpt pages as determined by Google
for its participants in the program."
So Section 8, combined with what do I
earn from the program, I can't say that this is
the exact page I looked at, at the time, but my

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2 that's my understanding from that.
3
Q. SO you didn't ask anybody from Google
4 how it works?
5
MR. McGOWAN: Objection. Asked and
answered.
6
You may answer.
7
A. I did not. I did not. As I
8
9 mentioned before, I did not speak to Google
10 employees in preparing this report.
11
Q. Do you think the materials that you
12 looked at are crystal clear?
13
A. I think the materials -- to me, the
14 materials I looked at were clear.
15
Q. I pre-marked PX 96, which is from
16 Google's website. It's a number of pages
17 collected from Google's website concerning the
18 Partner Program.
19
Take your time and flip through it,
20 but have you seen any of these pages before?
21
A. Yes.
22
Q. Are these the same things that you
23 looked at?
24
A. Roughly, I think I have looked at
25 these pages. I also cite some other pages that

23 partners are payments for ads clicked through
24 for standard Google style ads; and that the
25 partner additionally would earn revenues, but

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not through the partner -- not through Google
for, you know, any incremental sales of the book
that might occur.
Q. Are these revenues from these
incremental sales that copyright owners might
earn, important to your report?
A. So because, because those sales occur
in other places, you know, they occur at Amazon
or at Barnes & Noble, I don't have, I don't have
a mechanism to measure them.
But the fact -- and it is not
necessarily the case that incremental sales that
take place, would only take place, you know,
from the search page from a click.
But the fact that displaying the book
in Google, Google Books, in the Partner Program,
would provide incremental sales, is important to
my report.
Because, because as I've said, I
think that the revenues from the ad program are
de minimis.
And so the opportunity for readers to
learn about the book and, hopefully, buy the
book, is -- I have concluded the main benefit

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from participating in the Partner Program.
Q. The main benefit to publishers and
authors?
A. The main benefit to publishers and
authors.
Q. Is that also the main benefit to
publishers and authors, in your opinion, of
having their books available for search through
the Library Project?
MR. McGOWAN: Objection, vague.
You may answer.
A. So I think the -- yes, I should note
that because many of the books in the Library
Program are out of print, the consumer may have
limited opportunities to purchase those books.
But to the extent that there is an
opportunity to purchase the book or the consumer
becomes interested in the author and purchases
the author's other books, you know, on net, I
think the publisher and author would receive a
benefit from being in the Google Library
Project, because it would stimulate interest in
demand for the books.
Q. SO with respect to out-of-print

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books, it would stimulate demand and how is the
author monetizing that or the publisher?
A. So it will clearly be more difficult
for the author to monetize that interest, that
increased demand for an out-of-print book.
So there may be circumstances when
monetarily the -- there are probably many
circumstances where, you know, the consumer may
be interested in purchasing the book, but, you
know, there's no mechanism for that to occur.
The consumer may purchase, you know,
in some circumstances, a used book. That
doesn't directly benefit the author.
To the extent, I think it's, I think
it's reasonable that, you know, the search, you
know -- in circumstances where there's an
opportunity for the consumer to buy the book or
to buy another book by the author, you know,
then the author will benefit; or if enough
consumers have interest, you know, there are
programs to bring books back into print, which
are possible ways in which the author would
ultimately benefit.
Q. Does Google provide any information
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to copyright owners about how many, who are not
in the Partner Program, so copyright owners
whose books are in Google Books through the
Library Project, to your knowledge, does Google
provide copyright owners with any information
about how many searches have been made on their
book?
A. I believe they do not.
Q. SO how would they know, how does that
benefit the author or publisher if they don't
know how many, how much demand is being
expressed?
A. Well, if, for example, a number of
consumers, if consumers -- so they won't know
that the consumer searched for the book.
But if consumers seek the book
through Amazon, if the consumer, if the consumer
seeks out the author's other books, the author
may not be able to track the extent to which
Google Books has driven demand for their books,
but it nonetheless exists.
Q. How do you think Google tracks that?
A. Well, there are things that are
outside of Google's ability to track. So they

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presumably know what terms people searched on.
They probably do not know what things that came
up on a page, unless the person clicks the
individual was interested in, they may know -they do know whether the person clicked on a
link, but they don't know of the -- they
ultimately, do not know whether -- Google, my
understanding is, does not ultimately know
whether the consumer made a purchase, unless
they did so through Google Play, made a purchase
in response to having searched for the book.
Q. My question is do you know whether
Google tracks searches in books?
MR. McGOWAN: Objection, vague.
You may answer.
A. So what do you mean by searches in
books?
So do you mean does Google keep track
of the search terms?
Q. Yes, that people use.
A. I'm sure that Google has a record of
the search terms that people use.
Q. Do you think they have a record of
what books are displayed as a result of those

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sometimes search that way.
But, you know, I don't know even how
frequent it is for consumers to undertake a
secondary search within the book, and I don't
even recall that. I don't, haven't used that
feature of the website.
But they, you know, the entries that
the consumer has made in Google websites, I'm
sure Google at some moment knows.
Though it's, you know, obviously, a
mass of data that's probably, you know, in a
very raw form. But at some point, they know it.
Q. You don't think Google uses that data
for its own purposes?
MR. McGOWAN: Objection.
You may answer.
A. I, for example, know that the search
terms used at the Google search page are used to
sell ads, so they use the, you know, that's the
whole business model.
Q. What do you know about Google's
business model?
A. Well, Google's, obviously, a pretty
complicated company with a number of different
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2 search terms?
3
4

A.

I imagine they do.

Q. Do you think that when people search

5 inside a given book with additional search
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terms, that Google keeps records of that?
A. I am sure in some raw data form, any
click that the consumer made within a Google
site is, you know, whether it's kept, how it's
aggregated, I don't know, but at some moment,
Google has a record of the clicks that the
consumers make in Google sites.
Q. Well, I don't know what you mean by
click, but I'm saying do they keep a record of a
search term entered by a user, that in their
function that's called Search Within the Book?
MR. McGOWAN: Objection. I think you
crossed companies in that question.
MS. ZACK: I may have. I'm sorry.
Well, there is a Search Inside the Book
feature of Google.
A. So, yes, so my understanding is the
main way consumers interact with Google Books is
they enter a search term at the main Google
website or possibly at Google Books. I

1 J.A. Chevalier - CON F IDE NT I A L
2 products and services. Are you talking about
3 search?
4

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Q. Yes, let's talk about search.
A. So is your question what is the
business model of Google?
Q. Um-hmm.
A. So my understanding is that Google
provides search functionality, and they sell ads
that are key to search terms.
Q. Do they have any way of targeting ads
to users?
MR. McGOWAN: Objection as to form.
You may answer.
A. So I'm not an expert on Google search
engine. My understanding is that, for example,
I am more likely to receive ads for businesses
in New Haven, Connecticut than someone who
doesn't live in New Haven, Connecticut.
So there is some targeting, but I
don't know the intricacies of it, and I'm not an
expert on that.
Q. Do you know whether or not Google
uses information it obtains from searches made
within Google Books for purposes of its general

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2
2 ad targeting?
3
MR. McGOWAN: Objection, foundation.
3
4
A. So I don't know about that
4
5 specifically.
5
6
Q. Isn't it relevant to your report,
6
7 what benefits Google is getting from Google
7
8 search and Google Books?
8
9
MR. McGOWAN: Objection, foundation.
9
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You may answer.
11
A. Actually, I don't think it's that
11
12 relevant to the specific questions that I
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13 addressed in my report, no.
14
Q. SO you're saying to me that you don't
14
15
15 think understanding Google's financial
16 interests, with respect to its search engine, is
16
17
. 17 relevant to the conclusions you have reached in
; 18 your report?
18
19
MR. McGOWAN: Objection, foundation.
19
20
20
You may answer.
21
A. So, for example, I don't think it's
21
22
22 relevant to the question of whether Google Books
23
23 is a new good.
24
Q. Okay, anything else it's not relevant
: 24
25 to?
i 25

J.A. Chevalier - CON F IDE N T I A L
if you count up all the costs and benefits that
Google's received, I am not convinced that the
Google Books project was a positive, what we in
economics call a net present value project for
Google. But that's, you know, not germane to my
conclusions.
Q. You're not convinced? Have you
analyzed that?
A. It's not germane to my conclusions.
Q. Whether it's germane or not, you have
not done any analysis of the benefits to Google,
so how could you possibly express an opinion
about it?
You haven't even asked Google; have
you?
MR. McGOWAN: Objection,
argumentative, compound.
MS. ZACK: I'll withdraw it.
Q. You've been retained by Google.
You haven't asked anyone at Google
how much money they make or from Google Books?
MR. McGOWAN: Objection, foundation,
asked and answered.
You may answer.
Page 73

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A. I don't think it's particularly
relevant to the question of whether the search
output is a compliment or substitute to the
purchase of the good -- of the book.
I, I can -- in the final section of
the report, I considered, you know, whether a
market for search terms would occur. I think
it's not that relevant to that either.
Q. Referring you to, back to page 2,
paragraph 7, you conclude, your conclusion
number 2 is Google Books provides value to
authors; correct?
A. Correct.
Q. Does Google Books provide value to
Google?
A. I believe Google Books probably
provides value to Google, that it's -- I
obviously didn't express an opinion about it.
Q. Do you have any doubt that Google
Books provides value to Google?
MR. McGOWAN: Objection, vague.
You may answer.
A. I, I am not -- I have, I am not
convinced that the Google Books project was a,

1

I.A. Chevalier - CON F IDE N T I A L
A. There is not -- I was retained to

2
3 answer specific questions. The answer to that
4 question is not germane to these three
5 conclusions summarized in point 7.
6
Q. Seven (3), you say "Economic analysis
7 provides no reason to believe that Google Books
8 has superceded any potential market for books or
9 licenses to scan and index books," and your
10 reference there to economic analysis, is that
11 the economic analysis in your report?
12
A. Correct.
13
Q. You are not referring to any other
14 economic analysis?
15
A. Correct.
16
Q. Referring you to paragraph 9, "Google
17 Books is a search tool developed by Google."
18
A. Yes.
19
Q. What do you mean by a search tool?
20
A. I mean that Google Books is a
21 mechanism for consumers to, or users, to search.
22
Q. Do you consider Google, Google's
23 general search engine, to be a search tool?
24
A. I do.
25
Q. Are there any differences that you're

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aware of that you consider material between the
Google search engine, generally, and Google
Books?
A. Well, so Google Books is the marriage
of the Google digitization project, Google
search functionality and, you know, a display
mechanism that's particular to books.
So it's, you know, Google Books is
distinct from the rest of the search engine.
Though, it, obviously, uses expertise related to
the general search expertise.
Q. SO Google's -- can we -- I don't know
what to call it, but the general search engine.
You know what I'm talking about when
we talk about Google's general search engine, to
distinguish it from the Google Books search
engine, can we use those terms generally here?
MR. McGOWAN: Object, vague,
foundation.
MS. ZACK: I don't want to be vague.
I want to make sure the witness understands
what we're talking about.
Q. Do you understand those distinctions?
A. So you're going to use the term the

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general Google search engine and Google Books
separately?
Q. Right.
A. Okay.
Q. Is it your understanding that
Google's general search engine crawls the Web?
A. It is my understanding that Google
search engine searches Web pages, yes.
Q. Those Web pages are not placed on the
Web by Google; right?
A. In general, those Web pages are not
placed on the Web by Google.
Q. With respect to Google Books, do you
understand that Google actually digitizes
material for purposes of searching and placing
it on the Web?
MR. McGOWAN: Objection, foundation.
Calls for speculation.
You may answer.
A. So my understanding is that Google
digitizes material. That that material is
searched in Google's servers, and then the
material-- and then, you know, the material
displayed is, you know, depending on the

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program, the snippet, the whole text, the, the
partner.
Q. Do you understand that Google Books
involves Google obtaining off-line content and
making it available on the Internet?
MR. McGOWAN: Objection, vague.
You may answer.
A. I understand that the Google Books
project involved Google digitizing physical
books.
Q. That's different than the general
Google Web engine?
MR. McGOWAN: Objection, vague.
Calls for speculation.
A. So I'm not aware of every program
that Google has undertaken. For example, I
don't know whether there's a digitization
component in, say, Google Scholar.
But when we think about the Google
search engine, certainly, the most common thing
that we could -- that my understanding is it
searches materials, you know, in large part, on
the Web.
Q. In order to search the off-line

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material, the books, Google digitizes it;
correct?
A. Yes, correct.
Q. SO Google Books then involves not
just a search tool, but the creation of an
entire database of digital books; correct?
A. The Google search, the Google Books,
you know, in order to create the search tool,
the search tool is the product facing consumers.
As an input to that, Google created this digital
database.
Q. SO wouldn't it be more correct to say
Google Books is a digital database of books,
coupled with the search tool?
A. I think you could say that. I
wouldn't say it's more correct. I think that
Google Books -- I mean, you know, those are both
pieces of the project.
You know, when I describe the Google
Books, I'm thinking of the product that's
relevant to consumers in the marketplace, and
that's a search tool.
That is a search tool that relies on
the comprehensiveness of the database that's

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J.A. Chevalier - CON F IDE NT I A L I
created. So, you know, obviously, the
2
3
digitization is an important input to the final
4
product.
5
Q. Is the provision of the books to the
6
library, the digital copies of the books to the
7
library, an important component of the project?
8
MR. McGOWAN: Objection, foundation.
9
You may answer.
10
A. So, again, I understand that as part
of its agreement with the libraries, Google
11
provides the facilities that allow the libraries
12
to make a digital copy.
13
14
I don't -- I, I imagine, I think that
15
-- I won't say imagine -- I think that's an
16
important piece of, I understand, from, say,
17
Mr. Courant's deposition, that that's an
18
important component of the library's
19
participation.
But, again, I would think that for
20
21
the purposes of the consumer product, which is
22
what I'm focused on in Section 1 of the report,
the digital copy to the library is not the
23
consumer product that I'm really describing.
24
25
Q. But from Goog1e's point of view, it's

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2
an important component because that's how Google
gets the physical books to copyright?
3
MR. McGOWAN: Objection, vague.
4
5
You may answer.
6
A. So my understanding is from, say,
, 7
Mr. Courant's deposition, is that the ability to
8
make a digital copy on the part ofthe
9
libraries, is a value to the libraries.
10
Q. I wasn't asking what was the value to
11
the libraries.
12
I was asking what was the value to
Google.
13
And I said isn't it important to
14
Google, the library digital copy, since that is
15
necessary for Goog1e to get the print books and
16
digitizes, puts into its search tool, and then
17
18
provides digital copies back to the libraries?
MR. McGOWAN: Can I have that read
19
20
back, please.
21
(The record was read.)
22
MS. ZACK: I wiJI restate it.
Q. I was saying my question is not about
23
the library's perspective, but about Google's
24
25
perspective.

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lA. Chevalier - CON F IDE N T I A L
Isn't it important to Google to have
books to digitize?
A. It is important to Google to have
books to digitize.
Q. Is it your understanding that they
get the books from the libraries?
A. It is my understanding that the
books, that the core of the books that are
included, were from the libraries.
Q. Is it your understanding that the
libraries provide those books to Google for
digitization in exchange for a digital copy to
the libraries?
MR. McGOWAN: Objection to the extent
it calls for a limited conclusion.
You may answer.
A. So is my understanding that the
libraries provide the books to Google for
digitization.
It's also my understanding that the
opportunity to make a digital copy is of value
to the libraries.
So, you know, I cannot, I cannot say
exactly what was essential to the participation

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lA. Chevalier - CON F IDE N T I A L
of every partner. But I think the facility to
make a digital copy, would be an important
component of the library's participation.
That's my understanding from Mr. Courant.
Q. That's what got the libraries to
participate; correct?
MR. McGOWAN: Objection. Calls for
speculation.
You may answer.
A. So as I just said, I understand the
opportunity to make a digital copy is of value
to the libraries, but I really can't say whether
that was the crucial element for every library.
Q. What kind of value is it to the
libraries to get the digital copy?
A. So my understanding from, for
example, Mr. Courant's deposition, is that, you
know, the library's fundamental mission
includes, for example, preservation.
And so the mere existence of the
opportunity to make a digital copy, could be of
value to the library.
So I think Mr. Courant, you know,
mentions the floods in New Orleans, so that, you ,

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IS

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lA. Chevalier - CON F IDE N T I A L I
know, the mere existence of the digital copy,
2
even if it's not used, you know, the existence
3
of the potential to make the digital copy is of
4
value to the libraries.
5
My understanding is the libraries,
6
you know, exactly the totality of what the
7
8
libraries plan to do and whether they will all
take advantage of the opportunity to make a
9
digital copy, has not yet been completely, you
10
know, resolved.
11
Q. How do you know that, how do you know
12
it hasn't been resolved?
13
A. Well, since technology's evolving,
14
the set of things that the libraries can do
15
with, if they were to make a digital copy today,
16
is smaller than the set of things they could do
17
if they were to make a digital copy at some
18
point in the future.
19
And I think, you know, in
20
Mr. Courant's deposition, he discusses, you
21
know, he mentions things like accessibility
22
features for the disabled and suggests that the
23
full set of things the library might do, given
24
25
that the opportunity created digital copy

J.A. Chevalier - CON F IDE N T I A L
A. I don't think it's necessarily clear
that it does. So, for example, ifthe
opportunity to make a digital copy is, you know,
if the library's plan is to not make the digital
copy until such time, you know, not -- if the
library's, for example, primary purpose is
preservation, it's not clear to me that the
digital copy has any monetary value.
I think it depends on what the
library does with it.
Q. Well, does it have monetary value if
they would have to otherwise pay for the digital
copy and they get it for free?
MR. McGOWAN: Same objection.
You may answer.
A. I think that's a tricky question
because my understanding is that while,
obviously, libraries, many libraries have
digitization projects, it's not at all clear
that the books digitized as part of the Goog1e
Library Project, would have, in large part,
certainly not all or in large part, been
digitized by those libraries in the world where
the Goog1e Library Project didn't exist.

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lA. Chevalier - CON F IDE N T I A L

2 exists, has not been fully explored.
Q. Would you say that the digital copy
3
4 to the library has a monetary value to the
5 library?
6
A. If the library makes a digital copy,
7 depending on what it does with it, it could.
8 But I don't know for a fact that in many or most
9 cases, it would.
Q. Well, I'm just talking about this
10
11 particular project, Goog1e Books, where Google
12 makes available to libraries, digital copies.
13
Does that have a monetary value to
14 the libraries?
15
MR. McGOWAN: Objection, asked and
16
answered.
17
You may answer.
18
A. I think what I said was if the
19 library makes a copy, it may, depending on what
20 the library does with it.
21
Q. Well, does the fact, does having a,
22 is the fact that the library has in its
23 possession a digital copy, is that worth
24 something monetarily?
25
MR. McGOWAN: Same objection.

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So I don't think I can assert, as you
have, that the Google Library Project has saved
them from another digitization effort.
Certainly, in some circumstances, it
may. But, you know, I think there may be
circumstances in which the library, simply
because of resource constraints, was not going
to undertake a digitization project.
Q. SO just to make sure I understand.
If in my house I have 10 couches, and
someone gives me an 11th, and I don't really
need it, that provides no monetary value to me,
in your view?
A. Well, monetary -- you may derive some
utility, some happiness from having the couch.
But you are not going to receive any monetary
value for it, unless you do something to
monetize it.
Q. SO the only value I get is the
utility value?
A. So it depends on what you do with the
couch.
Q. SO you're saying, switching back to
the libraries, there would be, is it your view

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that the libraries would have a utility value in
2
the digital copies they get from Google?
3
A. So my understanding, as I've said
4
before, is that the libraries value the
5
opportunity to create a digital copy.
6
Whether that's a monetary value, I
7
mean it's a little hard to think about utility
8
9
when you think of an entity like the library.
You know, so, for example, if the
10
library chooses to make no digital copy, but,
11
you know, thinks about, you know, except in the
12
eventuality where the library burns down, you
13
know, I think the librarian is probably happier
14
in that circumstance, but I don't think there's
15
a monetary value.
16
Q. Do you know how many digital copies
17
have been provided by Google to libraries in the
18
Google Library Project?
19
MR. McGOWAN: Objection, foundation.
20
You may answer.
21
A. So my understanding is that the
22
libraries have the opportunity to make a digital
23
copy, and I do not know how many digital copies
24
the libraries have made.
25

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Q. SO you didn't get that information
from Google?
A. I did not get that information from
Google, if Google has it.
Q. They have it.
A. Okay.
Q. Would it matter to you how many
libraries have chosen to afford themselves of
that right to get a digital copy?
MR. McGOWAN: Objection, calls for
conclusion.
You may answer.
A. So I think that's beyond the scope of
my report. In my report, I opine on whether
Google Books is a new book, whether it provides
value to authors, and whether Google Books has
superseded any potential market for licenses to
scan and index books.
I don't think that the exact extent
to which the libraries have or have not used
their digital -- their opportunity to make a
digital copy, is germane to any of those three
questions.
Q. SO the libraries' uses of their

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4

5

J.A. Chevalier - CON F IDE N T I A L
digital copies is not germane to your report?
A. Whether or not the libraries have
made a digital copy and what it is that the
library will do with them, is not, is outside
the scope of my assignment.
It may be important to the case, but
it is not important to my report.
Q. Do you know with respect to the
Google Library Project, not the Partner Program
portion, how many of the books that Google scans
and includes in the search tool, as you describe
it, were commercially available books, as
opposed to not commercially available books?
A. I don't know that.
Q. If! told you that 90 percent of the
books were not commercially available, would
that affect your opinions in any way?
A. That would not affect my opinions.
Q. If! told you that they were 10
percent, would that affect your opinion?
A. No.
Q. Referring you to paragraph lOon page
3 of your report, about a little, you know, over
halfway down, there is a sentence that begins,

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"Google provides a snippet view for works that
have not been confirmed to be in the public
domain and for which the author or publisher has
not requested that the book be removed from
snippet view."
A. Yes.
Q. That's based -- you cite the
supplemental narrative responses of Google?
A. Um-hmm, yes.
Q. Have you personally looked at
snippets in Google Books?
A. I have.
Q. But you say you haven't used the
search within Inside the Book tool?
A. To search inside a specific book, as
opposed to within the set of books that use the
search terms, I do not recall doing that.
Q. What snippets have you seen?
From what book snippets have you
seen?
I mean give me an example of how you
did a search in Google and then how snippets
came up?
A. Well, I mean let me point out that

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2
2 while, you know, I've described what I've done
3 for the report in the report, Google Books has
3
4 been around for a long time, and I'm a scholar,
4
5
5 so I've used Google search tools extensively.
6
So, you know, I call1lot count how many
6
7
7 times I have used Google Books.
8
So an example that I describe in my
8
9
9 report, you know, I was curious about the term
10 choke price, which I use in my report.
10
11
11
I searched the term choke price. A
12
12 number of books, many books came up. Some in
13 snippet view. Some with more Partner Program-- 13
14
14 some in the public domain, some in snippet view
15 -- or I infer in the public domain, some in
15
16 snippet view, and some Partner Program books
16
17 where large sections of the book were available.
17
18
18
Q. SO did you search out the ones that
19 were in snippet view?
19
20
20
A. What do you mean did I search on the
21
21 ones in snippet view?
22
22
Q. You got a list of books -- you put in
23 the term choke price?
23
24
24
A. Um-hmm.
25
25
Q. You got a list of books; right?
I

J.A. Chevalier - CON F IDE N T I A L
And, you know, make a decision about whether or
not the book is relevant to me and then, you
know, maybe get the book.
Q. SO you haven't done any further
searches, using that search box, for further
snippets in the book?
A. I don't believe -- I mean I may have
at some point in a research, in research, but I
don't think I did it for this report.
Q. Do you recall that you can do
many snippets -- I mean do you have any
recollection or knowledge that you can, using
that search box, you can do repetitive or
multiple searches within a book and get
different snippets?
MR. McGOWAN: Objection, vague.
You may answer.
A. So I know that there are limits to
the extent to which you can undertake searches
and get snippets, different snippets from the
same books.
But I do not remember exactly what
those limits are. I mean I know each snippet is
about three lines, and I know there are limits

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2
A. I got, yeah, a display of books, I
3 would say, yes.
4
Q. I did it too. I saw 2,700 books,
5 choke price.
6
Did you click on any of the books
7 that came up?
8
A. Yes.
9
Q. You're saying that some of the books
10 that you clicked on were in snippet view?
11
A. So it is a good -- I have seen many
12 Books in snippet view on Google Books. Whether
13 the choke price search led to books in snippet
14 view, I can't specifically remember, but I
15 believe so, yes.
16
Q. SO if you click on a book that's in
17 snippet view, there is a window that comes up
18 that says search within the book.
19
You're not familiar with that?
20
A. I don't remember -- so I don't, I
21 don't think I've used that functionality
22 specifically.
23
I have looked -- I, generally, when I
24 find a book in snippet view, I look at the
25 snippets because that's what I'm interested in.

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lA. Chevalier - CON F IDE N T I A L

2 as to how many snippets totally you can receive
3 and how many for a given search term and how
4 many for different search terms, but I don't
5 recall those, offhand.
6
I have received the message you have
7 searched this book too many times, that's come
8 up.
9
But I think that's on repeated visits
10 to the site that that happens to have happened
11 to me.
12
So I know such security terms exist,
13 both from my reading and from my personal
14 experience.
15
Q. When you say three lines, are you
16 talking about three lines like this or three
17 sentences?
18
A. My understanding is three long lines.
19
Q. Three lines of snippets? You've
20 never seen snippets longer than three lines?
21
A. Well, certainly for Partner Program
22 books and for books in the public domain, you
23 see long things.
24
Q. I'm talking about books in snippet
25 VIew.

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2
A. I don't think I've seen snippets
3 longer than three lines. I think it's about an
48th of a page.
5
Q. Have you determined how much of the
6 books that Google makes available in snippet
7 view, are available by Google's users, totally,
8 to see snippets?
9
MR. McGOWAN: Objection.
10
Q. In other words, how much of the book
11 is available?
12
A. So my understanding is, as I said,
13 each, each session, each user limits, you know,
14 each, for each session and for each user, there
15 is a limited number of snippets that can be
16 returned to the -- in response to the user's
17 search.
18
Q. But that wasn't my question.
19
A. So your question was across all
20 users?
21
Q. Yes, I'm saying how much of the book
22 is available to be searched across all users?
23
MR. McGOWAN: Objection, compound.
24
You may answer.
25
A. So my understanding is that the

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you know, determined to be harmful and, you
know, has hurt consumers.
But I'm describing the economic
literature on new goods, and I think I describe
it accurately.
Q. SO I mean let's just take an example
of something like cigarettes.
I mean at a certain point in time,
that was a new good?
A. Well, probably. I think cigarettes,
yeah, cigarettes, you know, people have been
drying and rolling tobacco for before there were
markets for it.
But commercial cigarettes, at some
point, were probably a new good.
Q. SO the determination of it being a
new good, does not depend on it improving
consumer well-being; does it?
A. Well, as I explained in the report,
what makes a new good, a good new, is its
ability to satisfy previously unruet or at least
badly met needs.
Q. Including addiction?
A. So I believe that cigarettes satisfy
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entirety of the book is available to be
searched, in general.
(Brief recess taken.)
FURTHER EXAMINATION
BY MS. ZACK:
Q. Paragraph 15 of your report, please,
on page 4, it starts by saying, "There is basic
agreement in the field of economics that the
introduction of new goods is an important
contributor to improved consumer well-being."
I mean is that a blanket statement
true to any new good, even something like slave
labor?
MR. McGOWAN: Objection, foundation.
You may answer.
A. So I'm not sure slave labor is a
good. I think slave labor is a production
input.
I think what I say is right, that the
introduction of new goods is an important
contributor to improved consumer well-being.
I imagine you could consider a
situation in which a new good is introduced
that, you know, subsequently, for example, is,

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some consumer desires. Whether, you know, that,
you kn?W, subsequent to the introduction of
cigarettes, they turned out to, you know, have
very harmful health effects, you know, doesn't,
I think negate the basic principle that the
advance of consumer well-being has been driven,
in large part, by the introduction of new goods.
Q. But I mean economics generally
doesn't really look at the morality of the
situation; right?
MR. McGOWAN: Objection, vague.
You may answer.
A. I mean, you know, there is a
literature on economics and morals. But, you
know, there's a literature on economics and
morals.
Q. Right, but what I asked was
generally, does economics consider morals in its
determinations?
MR. McGOWAN: Objection, vague.
You may answer.
A. So I, the field of economics that I
am relying on here, do not contain explicit
discussions of morality in any, to any great

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extent.
Q. Then in paragraph 16, you begin your
analysis, I guess.
You say, "Economics often model the
introduction of a new good by describing a world
in which the new good was always available in
theory, but was only available at a
prohibitively high price - a price at which no
one would be willing to buy the good (often
called the choke price).
"Once a firm is able to offer the new
good at a price that's is not prohibitively
high, (i.e., at a price for which there will
be positive demand and which makes sense, on
the whole, for the firm), the firm will then
introduce that good into the market"; right?
A. That's what it says.
Q. Correct. So it says "Once a firm is
able to offer the new goods." So the firm here
is Google; right?
A. Well, here, I'm describing there's no
-- I mean here I'm describing an economic
principle.
Q. When you're applying that economic

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principle to this scenario, the firm is Google;
right?
A. Correct.
Q. When you talk about the choke price,
you say, "It's a prohibitively high price - a
price at which no one would be willing to buy
the good."
Now the price is set by the firm;
correct?
A. The price is set by the firm.
Q. The firm here is Google?
A. Well, again, here I'm describing a
general context. When I apply it later, I'm
talking about Google.
Q. But I'm talking about theory, the
firm is the seller or the provider of the good;
correct?
A. Here when I'm talking about the firm,
I'm talking about the provider of the good,
correct.
Q. Google has never charged for its
search tool; right?
A. Google has not charged for its search
tool.

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Q. SO from the consumer perspective,
they're not paying a price?
A. The consumer is not paying to use a
search tool, correct.
Q. SO the analysis of the choke price
here really should look at Google's price
or cost, the cost to Google; correct?
A. Sorry, could you repeat that?
Q. It says, "Once a firm," here Google,
"is able to offer the new good at a price that
is not prohibitively high," don't we have to
consider the cost to Google of providing the
good?
MR. McGOWAN: Ijust object. That's
actually not the sentence you were reading,
and it sounds like you were quoting.
You may answer.
MS. ZACK: I quoted the whole
paragraph.
MR. McGOWAN: You inserted a couple
of words.
MS. ZACK: I'm sorry.
Q. "Once a firm is able to offer the new
good at a price that is not prohibitively high,

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(i.e., at a price for which there will be
positive demand and which makes sense, on the
whole, for the firm), the firm will then
introduce that good into the market."
So in the context of this case, we're
talking about Google; correct?
A. Weare talking about Google in this
case.
Q. SO this sentence could read once
Google is able to offer the new good, and the
new good here is the Google Book search tool; is
that right?
A. The new good is the Google Book
search tool.
Q. SO once Google is able to offer the
Google Books search tool at a price that is not
prohibitively high, i.e., at a price for which
there will be positive demand and which makes
sense on the whole for Google, Google will then
introduce that good into the market, meaning the
search tool; is that right?
MR. McGOWAN: Can I have the
question.
A. Yeah, what is the question?

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Q. Is that the application of this
sentence to this case?
A. So in this, in this paragraph, I'm
explaining how economists model the introduction
of a new good.
So a convenience that economists use
to model or a framework that economists use to
model the introduction of a new good is to
behave as if the good always existed, but was
available at a very high price.
And then in our models, we think
about, at some point, the product becomes viable
in the marketplace. Usually, that may mean when
it's invented.
So here, for Google, what I'm saying
is, you know, at some point, this product was
impossible. It could not have produced this
product.
At some point, it made sense for
Google to embark on producing this product, and
they produced this product.
Q. But there's a price or a cost to
Google to producing the product; correct?
A. There was definitely a cost to Google

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of producing the product.
Q. That goes into what the price would
be that they have to charge for?
A. Well, you know, I guess here we
might, you know, you know, in this paragraph
since I'm, you know, speaking of the general
economic modeling framework, I'm describing the
price of the good quite straightforwardly.
Of course, for Google, you know, like
broadcast television, the consumer doesn't pay
to consume it. But, you know, advertising and
other things are sold.
So what I'm saying is, you know,
Google introduced this product when, you know,
when it probably; A, had the idea; and B, made
sense for Google to embark on this project.
Q. Well, I mean what it says is that,
"Once a firm," meaning here Google, "is able to
offer the new good at a price that is not
prohibitively high."
Now in considering that in this case,
don't you think Google would have had to
consider the cost of copyright infringement
suits?

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MR. McGOWAN: Objection. Lacks
foundation. Calls for legal conclusion.
A. So I am sure, as any firm, when they
launch a new project, Google had to consider all
of the, you know, potential benefits of the
project and the potential costs.
And I would imagine that all
potential-- all potential costs should, as an
economic principle, be included in that
analysis.
Q. In this particular case, a cost is
possible, that engaged in, that they are
violating copyrights; correct?
MR. McGOWAN: Objection to the extent
it calls for legal conclusion, foundation.
You may answer.
A. So in undertaking this project, I
would -- any firm that's undertaking the start
of any project, should include all potential
costs in, you know, and the probability of
paying them, in assessing whether the project
makes sense.
And so for Google, potential
litigation costs of this project should, should

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have been considered as a matter of economics,
when thinking about whether or not to launch the
project, as it should for any production
process.
Q. Would this analysis that you have in
paragraph 16, would any firm seeking to offer a
new good to the market, consider whether it was
legal or not to do so?
A. So any firm offering a new good to
the market would, you know, have to consider
whether it was legal to offer the new good to
the market or not.
Q. Referring you to paragraph 17. Well,
before I get there, what other factors would
Google consider in determining whether the
product or the new good made sense for the firm?
A. So they would consider, I think, the
potential revenues from the product. They would
consider the cost for the -- some estimate of
the cost of the product.
They may, there may be issues
regarding thinking about the fit of the product
with the rest of the company's offerings. And
the fit of the product, the relationship of the

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JAChevalier - CONFIDENTIAL
product to the general mission of the company.
Q. Would it be your view that the
potential benefits to Google, as a firm, would
have to substantially outweigh the costs before
they would go to market with a new good?
A. So, of course, many times when a firm
makes a new product launch, you know, after the
fact, it mayor may not tum out to be, you
know, it may not tum out to be valuable for the
firm.
But at the time of making the launch,
the firm would consider whether the benefits on
net to the firm, in this case Google, exceed the
costs.
But the benefits and the costs may
be, you know, very widespread. So, you know, it
may not just be -- the benefits may be, you
know, this product will, you know, further
Google's mission or this product will, you
know -- the benefits have to be appropriately
considered, but the benefits have to exceed the
costs for any product to be launched.
Q. SO as a matter of economics, you
would assume here that Google determined that

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JA Chevalier - CON F IDE N T I A L
provides value to authors, or whether Google
Books has superceded a potential market for
books or licenses.
Well, I may find the question of how
Google made the decision to launch the Library
Project interesting, it's not germane to the
answer to those three questions.
Q. You assessed in answering the
question whether or not it was a new good,
meaning Google Books, you assessed the
consumer's side of the equation; correct?
A. I did.
Q. But you didn't assess the Google side
of the equation?
A. So in the literature on new goods,
and in the literature and in the practice of how
to assess whether a good is a new good, the
consumer side is the, the consumer -- the
important test for whether tests for whether a
good is a new good, are on the consumer side.
We observe that the product has been
introduced. Then we can assess whether that
product meets needs that have previously been
unmet or poorly met.

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the benefits to it of launching Google Books,
exceeded the cost, including the cost of
litigation?
MR. McGOWAN: Objection, foundation,
compound.
You may answer.
A. So, you know, as a matter of
strategy, Google should undertake an analysis of
the benefits and costs of the project upon
launch.
But I don't have any basis for which
to know whether, you know they appropriately,
whether they, you know -- I don't have any
insight into the analysis that they undertook,
other than what's contained in the record.
Q. Because you didn't ask them?
A. There's some discussion of it in the
record, but I did not ask for a separate
analysis of that.
Q. Is that because you didn't care about
the benefits to Google?
A. As I've explained before, my report
covers three questions. The question of whether
Google Books is a new good, whether Google Books

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1 JA Chevalier - CON F IDE N T I A L
2
Q. Do you think the Partner Program
3 poorly meets the needs of consumers?
4
MR. McGOWAN: Objection, vague.
5
You may answer.
6
A. I'm sorry, do you mean does the
7 Partner Program, alone, poorly meet the needs of
8 consumers?
9
Q. Yes.
lOA. The Partner Program, alone, does not
11 meet the needs of the consumers, to the extent
12 to which the entire project does.
13
Surely, some consumers would find
14 benefit in the Partner Program.
15
Q. Would consumer needs be more fully
16 met if Google displayed entire books?
17
A. So you mean with the existing search
18 functionality, but simply returned to the entire
19 book?
20
Q. Yes.
21
A. Consumer needs, I think, consumers
22 would, consumers would certainly benefit from
23 being able to obtain more than the snippets.
24
Q. Well, if Google displayed, in
25 response to consumer requests, entire digital

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copies of all books, whether in copyright or out
of copyright, wouldn't that be a benefit to
consumers?
A. Yes, that would be a benefit to
consumers.
Q. Would that be a new good?
MR. McGOWAN: Objection, vague.
You may answer.
A. Yes, it would be a benefit to
consumers and, yes, it would be a new good. It
would be a, it would certainly be a benefit to
the consumers, using the site at that moment.
Q. I'm not quite sure I understand the
caveat there?
A. So the caveat is if Google, if Google
or another entity were to do something that
actually destroyed the market for books by-well, of course, it wouldn't single handedly
destroy the market for books, but if Google were
to do something that substantially diminished
the market for books, then one might worry as
is, you know, the basis for intellectual
property law, that the market for books would
ultimately shrink.

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In this case, as I discuss in my
later section, I believe that the functionality
that Google provides is a compliment for the
market for books, rather than a substitute. So
no such concern arises.
Q. Can't a new good benefit consumers
and also destroy a different market?
A. I think the concern is that if you -it depends, you know, I think the time horizon
is an issue here.
If Google were to display entire
copies of books, the consumers who, without, you
know, entire copies of books for which there was
otherwise a market, and that led consumers to
buy fewer books, then that would lead to fewer
books being produced, which would ultimately
harm consumers.
Q. Since the price that consumers pay
for Google Books search is zero, is there any
reason why they wouldn't be benefited by Google
Books?
A. So since the price that consumers pay
is zero -- well, I described one scenario where
consumers could ultimately be harmed. That's

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lA. Chevalier - CON F IDE N T I A L
not the case at hand.
But in general, you know, given that
consumers don't pay to use the search
functionality, they can't, you know, they can't
be -- they would, in general, not be worse off
from the existence of the search functionality.
But the extent to which they benefit
is a function of the quality of the search
functionality and the comprehensiveness of the
works included.
Q. Well, in order for something to be a
new good, do consumers have to benefit?
A. Yes. So in order for something to
be -- well, as I explained in the thing, in
order for something to be a new good, consumers
have to have a willing -- consumers have to have
-- it has to meet a need that was previously
unmet. So the need implies consumers have to
benefit.
Q. SO if we think of a new good that
consumers don't have to pay for because it's
given away free, but it was a neutral on
benefit-MS. ZACK: Withdraw that.

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Q. -- a new product that, is given away
free, sort of neutral to the consumers, that's
not a new good?
A. That's ifs, if it's a product that
is given away free and consumers, you know,
don't derive substantially utility from it,
different from previous goods, then they, then I
wouldn't consider that a new good.
Q. Referring you to page 6 of your
report, footnote 28, please?
A. Yes.
Q. You write, "It is important to note
that the search and index capabilities that
define Google Books are feasible only through
the scanning and digitization of the underlying
book in its entirety. In order to present
results that are relevant to each user's search,
the entire book must be scanned and digitized.
Therefore, while it is true that an input to
Google Books is the scan, digitized book in its
entirety, the output, which represents the
actual use of the Google books, employs only
small portions of the book, at most."
A. Yes.

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Q. Now the input or in the output,
includes digital copies to the libraries; right?
MR. McGOWAN: Objection, vague.
You mayanswer.
A. So as I've said before, it is my
understanding that Google has provided the
functionality of two libraries for libraries to
make their own digital copy.
I am not, you know, clearly here, I
am describing the Google Books, I'm describing
the Google Books website.
Q. Well, when you talk about input to
Google Books, and output -- all right, so an
input to Google Books, do you consider the scan,
library scan, to be an input to Google Books?
MR. McGOWAN: Objection, vague.
You may answer.
A. So as I say here, "Therefore, while
it is true that an input to Google books is the
scanned, digitized book," yes.
Q. Then you're talking about the output
being the Google Books itself?
A. Yes.
Q. You say it "employs only small

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portions of book, at most"?
You previously testified that the,
even for the Google Library Project, the entire
book was available for search; right?
A. So for the Google Library Project,
yes, the entire book is searched, but the output
is the search result that the consumer receives.
And the output is only a small
portion of the book.
Q. That's for one consumer you're
saying. What about all consumers?
MR. McGOWAN: Objection, vague.
You may answer.
A. So I think it is what I said, that at
the output for any given book, for any given
search, for any given consumer, is a small
portion of the book.
Q. Well, that's not what you're saying
says?
MR. McGOWAN: Objection,
argumentative.
Q. Your sentence says, "While it is true
that an input to Google Books is the scanned,
digitized book in its entirety, the output,

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which represents the actual use of Google Books,
employs only small portions of the book, at
most."
Now the Google Books allows search of
entire books; correct?
A. So it allows, it searches the book in
its entirety.
Q. And that it also allows consumers
access to virtually the entirety of the book;
right?
MR. McGOWAN: Objection, vague.
Q. Or employs, you used the word
employs?
A. I see. So is your objection to the
use of the word employs?
Q. It's not an objection. I mean Google
employs more than small portions of the book;
doesn't it?
MR. McGOWAN: Objection, vague.
You may answer.
A. Okay, so I use the term input and
output. And by employs, I mean that the output
consists of only a small portion of the book.
I believe that your question is, by

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using the word employs some what differently,
your question is doesn't the production of the
snippet that the consumer views, rely on
Google's having the entirety of the book,
because the consumers search, searches the
entirety of the book, and that is true.
Q. What about the fact that Google
employs the entire book to allow snippets to be
displayed to many different consumers and in
different snippets from virtually all of the
book?
MR. McGOWAN: Objection. Foundation.
You may answer.
A. So my understanding is that, yes,
different snippets will be viewed by different
consumers.
Q. Those snippets, over different
consumers, will consist of virtually the entire
book, except for the parts that Google
blacklists; correct?
MR. McGOWAN: Same objection.
You may answer.
A. So are you asking me as an empirical
matter, would it be the case that consumer

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search of a particular book would lead to across
all consumers, the entirety of the content of
that book being eventually displayed over some
period of time?
Q. Yes.
A. Are you asking will that happen as an
empirical matter or are you asking could that
happen?
Q. Well, could that happen?
A. So I suppose it is the case that
other than the piece of the book, the patis of
the book that is blacked -- well, it would be
tricky because no consumer is allowed -- gets
the same search tenns more than a limited number
oftimes.
I suppose we could write a program -no, no, we couldn't. I suppose if! had the
book, I could -- and I had millions of
helpers -- no, I think it -- no, I don't think
it could happen because when you search -- I
think, I think it is un -- I'm not a computer
scientist, and I don't profess expertise in
consumer science, but I think it, the entirety
of -- across all consumers, across all time,

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it's very unlikely, it seems impossible,
actually, that the entirety of the text of the
book would be displayed.
Q. You're saying you understand that
Google divides, generally, the practice is to
divide the book into eighths, and they call each
eighth of the book a snippet; is that right?
MR. McGOWAN: Objection, foundation,
and that's actually an incorrect statement.
A. Do you mean the page?
Q. I meant page, yes. Sorry.
A. So my understanding is that a snippet
is about an eighth of a page.
Q. You understand that those snippets
are displayed in response to search requests?
A. I understand that snippets are
displayed in -- a limited number of snippets are
displayed in response to search requests.
Q. A limited number are -- three are
displayed in response to each search request;
correct?
A. Yes.
Q. But how many users does Google have?
A. It has a lot.

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Q. Do you know how many?
A. I don't know how many have searches
-- I don't know, off the top of my head.
Q. I think they post on their website
that they have billions of users?
A. Okay.
Q. I don't know if they're all using
Google Books; do you?
A. Well, Google Books, you know, is
returned from the core search engine, they may
or may not be.
Q. Google also states that it blacklists
about 10 percent of a book, one out of 10 pages,
I'm saying 10 percent; do you understand that?
A. I understand that.
Q. SO that's the blacklisted portion,
and then they blacklist the snippet per page.
Have you read that?
A. I have read that.
Q. SO there's a portion of the book
that's blacklisted?
A. Correct.
Q. Other than that portion, Google makes
the rest available for display in snippets;

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right?
MR. McGOWAN: Objection, vague.
You may answer.
A. Yes, my understanding is that the
rest is searchable and viewable through
snippets.
Q. SO Google employs all ofthe book,
except the blacklisted parts; correct?
MR. McGOWAN: Objection, vague.
You may answer.
A. Google uses as an input, all of the
book, but they don't output all of the book.
Q. They don't output all of the books on
a single search, but they make, they certainly
will output it all, if they can, if they get
enough users, they'll output it all, right,
except for the blacklisted pages?
A. So I'm pretty sure I'm not the best
person to answer this, but my understanding is
that actually wouldn't happen because, for
instance, when I search for a term, say the term
heart, the first three instances of the use of
the term heart appear.
I don't, I don't even know across

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1 J.A. Chevalier - CON F IDE N T I A L I
2 consumers how it is one would get to the
2
3 subsequent uses of the term heart. So, so, so,
3
4 I don't believe it is the case that anything
4
5 resembling the book, the actual book, could be
5
6 outputted via the Google search engine.
6
7
Q. The snippet, when you search for
7
8
8 heart and you get some snippets that includes
9 the word heart, but there's a lot of other words
9
10
lOon that page than that snippet; right?
11
MR. McGOWAN: Objection, vague.
II
12
12
You may answer.
13
A. Correct, there are other words.
13
14
Q. People could search for those other
14
15 words, right, different people?
15
16
A. Let us, let us stipulate, I do not
16
17 know whether it is, and I'm not an expert in the
17
18 exactity of exactly how -- I know, in general,
18
19 how this search engine snippet function works.
19
I believe it not to be the case that
20
20
21 you could receive, you know, that a billion
21
22 consumers put together, could somehow assemble 22
23
23 the entire book from the results of the Google
24
24 search engine.
25
They certainly can't because of the
25

J.A. Chevalier - CON F IDE N T I A L
So this -- for a consumer, what is the output of
Google Go Books for the set of books that are in
copyright, but not in the Partner Program, it is
snippets, which represent a small fraction of
the book.
Q. SO you're talking about the
experience of a single consumer using Google
Books?
A. Well, in this footnote-Q. Right, in this sentence?
A. -- in this footnote, I'm talking
about the product as it is experienced by the
consumer. And so it's, you know, it is the
output as experienced by the consumer.
Q. But not consumers as a whole?
MR. McGOWAN: Objection, asked and
answered.
You may answer.
A. So consumers, as a whole, all
experience snippets. You know, the question of
whether, you know, a number, you know -- yes,
consumers, as a whole, experience snippets.
Q. SO paragraph 20 on page 7, this is
the concluding paragraph of your analysis about

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blacklisted pieces, but I think, it is my
understanding, they can't just in general. But,
you know, I don't know that for a fact.
Q. Oh, okay, I didn't ask you about who
was assembling anything.
I asked you whether Google employs
it?
A. So the output, which is the
screenshot, employs only a small portion of the
book.
Q. SO this sentence is only about a
single search?
A. This sentence certainly applies to a
set of searches, but this sentence was intended
to describe the output as relevant to a
consumer.
Q. SO you're talking about basically one
or two searches by a single consumer?
MR. McGOWAN: Objection, misstates.
You may answer.
A. I'm talking about the set of searches
that a consumer would experience. I'm not going
to say one or two.
I've done many more than one or two.

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1 J.A. Chevalier - CON F IDE N T I A L
2 new goods; is that right?
3
A. Correct.
4
Q. SO this is, again, your analysis here
5 is part of the economic theory involving the
6 development of new goods?
7
A. Correct.
8
MS. ZACK: We can take a break for
9
lunch.
10
MR. McGOWAN: Before we do that, let
11
me note for the record, the document number
12
you asked for is Google 05004751.
13
MS. ZACK: I know what that is, so
14
that's the big long list.
15
(Luncheon recess: 12:26p.m.)
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J.A. Chevalier - CON F IDE N T I A L

1 J.A. Chevalier - CON F IDE N T I A L
2 by consumer demand.
Q. That's true whether there is or isn't
3
4 Google Books; isn't it?
A. That's true whether there is or there
5
6 isn't Google Books, but it's my testimony that
7 Google Books helps drive consumer demand for
8 books.
9
Q. SO if consumers are buying used books
lOon Amazon, that helps drive consumer books for
11 new books by those authors?
12
A. I'm saying that -- I said, I think,
13 two distinct things. The consumer may look for
14 other books by the same author.
15
And, you know, when consumers buy
16 used books on Amazon, when used books, you know,
17 when it becomes apparent that there's a lot of
18 demand for a used book, that may assist in
19 bringing the book back into print.
20
Q. How does the author know if there's a
21 lot of demand for a used book on Amazon?
22
A. Well, for example, the price at which
23 the book is selling in the Amazon Marketplace,
24 reflects the, reflects the supply and demand of
25 the book.

AFTERNOON SESSION
(Time noted: 1:15 p.m.)
J U D I T H A. C H E V A LIE R, resumed
and testified as follows:
CONTINUED EXAMINATION
BYZACK:
Q. Referring you to page 9 of your
report, please? You have discussion throughout
this section about Google Books as a complement,
not substitute?
A. Correct.
Q. And which you talk about the fact
that books get noticed, etcetera -A. Correct.
Q. -- through Google Books, and that
that's a benefit. You conclude that's a benefit
to authors; right?
A. Correct.
Q. That benefit is virtually exclusive
to in-print authors; correct?
A. I wouldn't say that. I think
in-print authors will benefit more, but
out-of-print authors may benefit under certain
circumstances.
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J.A. Chevalier - CON F IDE N T I A L

Q. Can you tell me those circumstances
in which you think they'll benefit, given the
way Google Books works?
A. Yes. So I think they will benefit in
a number of circumstances. One would be if,
even though some of the authors' books are out
of print and some of the books -- if in
circumstances where some ofthe authors' books
are out of print and other of the authors' books
are in print, consumers may, you know, if they
discover a book they're interested in via Google
Books, that might lead them to other books by
those authors.
It may lead them to other books on
the same topic, probably benefitting different
authors. But I think also, there are some
mechanisms and those mechanisms, I think, are
becoming more relevant in the marketplace, where
if consumers, say, buy used books on Amazon and,
you know, there are used books on Amazon that
are selling for very high prices because there's
a demand for the book to come back into print.
There may be circumstances in which,
you know, a book could be driven back into print

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Q. Right, so it could have a high price
because it's in rare supply, but that doesn't
mean there's a lot of demand; does it?
A. If there's a high price for the book,
and, you know, I suppose it's possible that a
seller posted a high price for the book and
never sells it, but if transactions are taking
place at a high price, that means that there's
high demand relative to supply.
Q. Is that reported to authors or
publishers?
A. An author could easily look that up.
Q. Could easily look it up where? Have
you looked it up?
A. Yes, so if you go to Amazon and you
look at Amazon Marketplace, you would see -- and
I would do this, I would advise, ff I were an
author doing this for other book sellers too, I
would look at the copies of m.y used book, and
the prices that they're selling for.
Q. Does that functionality tell you the
prices that -- the actual sales prices?
A. So it tells you the prices that
sellers have posted. If you, if you were to,

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you know, look over the course of some period of
2
3
time, you would observe, you would observe -- I
don't know that it directly provides data on
4
5
sales.
6
But, you know, if you were to look
over time, you would see that, you know, sellers
7
8
who have posted a book at a particular price
have, you know, moved to those books off, which
9
would lead an author to infer that they've been
10
bought.
11
12
Q. Or taken down by the seller?
A. I suppose that's possible. But since
13
the purpose of the seller is to sell books, and
14
it doesn't really cost them anything to keep the
15
books on Amazon Marketplace, unless the seller
16
17
had some other desire to have the book or sell
it off-line or some other place, which is
18
19
selling the book, I think it's reasonable to
20
infer that, you know, a book, if your book, you
know, that books that are removed from Amazon
21
Marketplace were being sold.
22
23
Q. Have you ever looked at any data from
24
Amazon about that?
A. So I don't have data from Amazon
25

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JA Chevalier - CON F IDE NT I A L
advertising.
Q. Right, and that choice of where to
place an ad can be quite important; right?
A. So, yes, I think firms' decisions
about where to place ads are important.
Q. There are sometimes places where
firms don't want ads; right?
MR. McGOWAN: Objection, foundation.
You may answer.
A. I understand there are circumstances
where, you know, a firm would not want to
advertise, say, in a venue that's a mismatch for
the firm's message or product.
Q. In paragraph 34 on page 10, you say
"I understand that it is Mr. Harris's view that
the excerpts were snippets provided by Google
Books in response to a user's search bear a
resemblance to these mechanisms that consumers
may use to "find" a book."
A. Yes.
Q. Find is in quotes.
So there you use the term Google
Books, but again, there are two parts to it, the
Partner Program and the Library Project; right?

Page 131

available to me about that. I've used data from
Amazon Marketplace for books, but not for the
purpose that you have just asked.
Q. You have some data -- or I shouldn't
say data -- discussion in here about
advertising; is that right?
A. Yes.
Q. SO you're analogizing Google Books to
advertising?
MR. McGOWAN: I just ask for a
reference to where you're reading.
MS. ZACK: I'm sorry, it's basically
throughout in different places, but an
example is on page 9, paragraph 28.
MR. McGOWAN: Thank you.
A. So I am saying that Google Books
serves a function like advertising. And that it
informs the consumer about the existence of
books.
Q. When companies decide to advertise
products, they do choose where to advertise
them; don't they?
A. So when companies purchase
advertising, they choose where to purchase the

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A. Correct.
Q . You think that both bear a
resemblance to mechanisms that consumers may use
to find a book?
A. So as I say in the next sentence,
"whether a more extensive sample of text is
accessible (as in the case of the books that
enter Google Books via the Partner Program) or
whether snippets are available, Google Books
makes it easier for a book to get noticed," so
yes.
Q. The previous paragraph 33 where you
discuss Mr. Harris, you talked about in the
second sentence, "A major role of the publisher
is to attempt to achieve consumer awareness of
the publisher'S books. Consequently, publishers
employ many tools to generate publicity about
the book and to get the book noticed. These
include: provision of excerpts," etcetera; you
see that?
A. I see that.
Q. SO I thought that paragraph 34
related back to 33; is that true?
MR. McGOWAN: Objection, vague, and

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2
2
you may answer.
3
3
Q. When you say "These mechanisms" in
4 paragraph 34, aren't you referring to the
4
5 mechanisms that you've mentioned in paragraph
5
6
6 33?
7
7
A. Yes, in 34, I am saying that the
8
8 excerpts or snippets resemble the mechanisms
9
9 that consumers may use to find a book or that
10
10 publishers may use to help consumers find a
11
11 book.
12
12
Q. Let's just stick with the first
13
13 sentence in paragraph 34.
14
14
So "these mechanisms" refers back to
15 the tools employed by publishers; right?
15
16
A. Yes.
16
17
17
Q. These tools that you've mentioned
18 here that are employed by publishers, are all
18
19 done pursuant to contracts with third-parties;
19
20
20 correct?
21
21
MR. McGOWAN: Objection, foundation.
22
22
You may answer.
I 23
A. Sorry, so you mean that the publisher
23
24
24 undertakes these promotional activities as part
25 of its agreement with the author?
25

J.A. Chevalier - CON F IDE N T I A L
are similar to the mechanisms that consumers, on
the buy side or publishers on the sell side,
use.
Q. But there is -- they bear a
resemblance, but there's a major difference in
that the mechanisms listed in paragraph 33
involve contractual permission; correct?
MR. McGOWAN: Objection, vague.
You may answer.
A. So I think the point, that one of the
points of this section is to explain that the,
that the, that the mechanisms used that involve
permission, are similar to the mechanism
provided by Google. That they look the same to
the consumer and should have the same effect.
Q. But they look different to the
author; right?
MR. McGOWAN: Objection, foundation.
You may answer.
A. As I've said, as you have said, one
involves, one involves the permission, at least
of the publisher, and the other does not.
Q. The permission of the publisher or
the author; right?
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Q. Correct.
A. Yes, I believe that the publisher,
that the publishers -- the publisher, I think,
has some discretion in their marketing
activities.
But it's my understanding that the
reason authors use a publisher is so -- one of
the reasons an author uses a publisher is to
obtain some access to some of these marketing
services.
Q. A snippet view in Google Books
through the Library Project, involves no
contract between Google and any rights holder;
right?
A. Correct.
Q. SO in that sense, there's not a
resemblance, there's a difference between the
mechanisms in paragraph 33 and what Google does;
right?
MR. McGOWAN: Objection, vague.
You may answer.
A. I think my language states exactly
24 what I mean, that the type of mechanisms
25 provided by Google are -- bear a resemblance,

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J.A. Chevalier - CON F IDE N T I A L
A. The permission of the publisher-sorry, so in Section 33, generally, I'm talking
about the publisher undertaking the marketing
function.
There may be circumstances, say, for
self-published books where the author undertakes
the marketing function, but, yes.
Q. In paragraph 34, at the end of the
second sentence, let's -- I will start with the
whole second sentence.
You say, "Whether a more extensive
sample of text is accessible (as in the case of
books that enter Google Books via the Partner
Program) or whether snippets are available,
Google makes it easier for a book to get
noticed, which may increase demand for that book
and benefit the author."
Have you done any empirical research
concerning that conclusion?
A. So the research I've done or the
foundation for that statement are the things
that I cite.
I don't, there's, there, you know, I
don't, I do not believe there's a data set that

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2
would help me to measure empirically whether,
whether more book sales take place as a result
3
4
of the existence of the Google Partner Program.
5
So there's a number of just -6
there's a number sites in the record and
7
referenced in my report, but I didn't undertake
8
an empirical analysis.
9
Q. That's because you don't think that
10
would be possible or -A. I don't have access -- I don't
11
12
believe, I don't believe it would be possible to
measure the effect of Google Books on the sales 13
14
of books.
15
Q. In paragraph -- I'm sorry, page 11,
16
paragraph 36, you state in the second sentence,
"That is, there is market-based evidence that
17
18
market participants - authors and publishers 19
see value in Google Books, so much so that
through the Partner Program, they have opted to 20
21
have even larger excerpts than snippets
22
available for consumers to read."
23
A. Correct.
24
Q. In the Partner Program, you are aware
25
that the partners can have control over how

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lA. Chevalier - CON FlO EN T I A L
large the excerpt is that is viewed; right?
A. I understand that, yes.
Q. There is no snippet view in the
Partner Program?
A. As though I understand that the
entire book is searched, as it is in the Google,
in the library program.
Q. The entire book is searched, and then
what happened?
A. So my understanding is that the
entire -- so if you type in the word guitar, the
entire book is searched for the word guitar.
But the partner controls the
percentage of the book that the, that the user's
able to see.
Q. SO if a book in the Partner Program
includes the word guitar, but if that word
itself is not in the excerpt that the partner
has permitted to be viewed, what happens?
A. So I would, my understanding is that,
my understanding is that the -- my understanding
is that the partner chooses the percentage of
the book that can be seen, provides the book for
scanning.

J.A. Chevalier - CON FlO EN T I A L
I guess I don't know exactly what
happens, if it is actually feasible that -- I
know the whole book is searched.
I'm exactly sure what happens if the
partner can block specific pages or simply
determines the percentage of the book that can
be seen. I would have to double-check on that.
Q. Isn't it your understanding that the
amount of pages that can be seen in the Partner
Program is fixed to certain pages?
MR. McGOWAN: Objection. Asked and
answered.
A. Yes, so I said I understand that the
fraction of the book that the user will be able
to browse is, is controlled by the partner in
the Partner Program.
But I do not precisely know the
implementation of it and, therefore, the exact
answer to your question.
Q. Does that have any bearing on your
report, the answer to that question?
A. No, the statement I make in the
report, the statements I make in the report are
still, don't, don't bear on that distinction.
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Q. Are you aware that a number of
publishers sued Goog1e under the copyright laws
with respect to Google's Library Project?
A. I understand that a number of
publishers -- that some publishers sued Google
as part of the Library Project, but I don't
believe they're currently parties to this
complaint or a complaint.
Q. What is your understanding about what
the publisher'S claim was?
MR. McGOWAN: Objection to the extent
it calls for conclusion.
You may answer.
A. So I did not review documents from
that prior litigation, and so I don't know the
answer to your question.
Q. Were you aware that the publishers
and the publishers trade association, the AAP,
were parties to the same claims as the authors?
A. So I understood, I understand that
there was a previous litigation involving the
publishers.
My understanding is that that
litigation is not in existence anymore. So I

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1 J.A. Chevalier - CON F IDE N TI A L l
2 assumed that that litigation was ended to the
2
3 publishers' satisfaction, but I don't know
3
4 anything more about it.
4
5
Q. You haven't asked Google about that?
5
A. No.
6
6
7
Q. Where did you gain the information or
7
8
8 assumption that the publishers' case is closed?
A. They are not -- I haven't read
9
9
10 anything about the publishers' case and, you
10
11 know, they are not a party to this, to this
11
12 litigation.
12
13
Q. SO from that, you assume their case
13
14 was closed?
14
15
A. I assume their case was closed.
15
16
Q. You don't know on what terms?
16
A. I do not.
17
17
18
Q. Is that relevant to you?
18
19
19
A. No.
Q. Well, you're talking here about the
20
20
121 publishers seem to be pleased with Google;
21
22 correct?
22
23
A. I believe what I've said is that the
23
24 publishers have found Google Books, the Partner
24
25 Program, to be a program that they
25
I

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J.A. Chevalier - CON F IDE N T I A L
the publishers enter the Partner Program, that
they have a larger portion of the book available
forview?
A. So the snippet -- instead of the
three line snippets, what's returned in the
Partner Program is, in general, a larger
fraction of a, a larger readable chunk.
Q. But it's a fixed chunk chosen by the
publisher; correct?
MR. McGOWAN: Objection.
A. So as I said before, my understanding
is that the publisher chooses the fraction of
the book that's viewable to the consumer.
Q. Have you talked to any publishers
about this matter?
A. I have not talked to any publishers
about this matter, except Mr. Harris, who is a
publishing strategist and former publisher.
Q. Have you talked to anyone at Random
House about this?
A. I have not talked to anyone at Random
House about this, though, of course, Mr. Harris
is formerly of Random House.
Q. Did you look at the settlement that

Page 143

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J.A. Chevalier - CON F IDE N T I A L I
overwhelmingly want to participate in.
2
3
Q. Have you ever found evidence that the
Google Library Project is a program that the
4
publishers want to participate in?
5
MR. McGOWAN: Objection, vague.
6
You may answer.
7
A. So since the Google library project
8
is housed under the same search engine and
9
10
integrates search with the Google Partner
Program, I believe the way that a publisher
11
expresses an interest in -- you know, the
12
publisher doesn't have to do anything to have
13
its book available in snippet view.
14
If the publisher doesn't want its
15
book available in snippet view, it can tell
16
Google to remove the books.
17
If the publisher wasn't more than
18
snippets view, it joins the Partner Program.
19
So the fact that publishers have
20
joined the Partner Program, means that the
21
22
publishers have chosen to have a larger fraction
of the book viewable than would take place under 23
the Library Program.
24
25
Q. That's what you believe happens when

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J.A. Chevalier - CON F IDE N T I A L
was reached by publishers and authors with
Google, and it was then not approved finally by
the court?
A. I have familiarity with that
settlement. I mean I've seen it. I didn't
review it for the purposes of writing this
report, but I have read it previously.
Q. Are you aware that the publishers
consider -- that Random House, Penguin,
HarperCollins, Simon & Schuster, Hachette,
Macmillan, John Wiley, Houghton Mifflin and
other publishers consider it extremely important
that their books not be available to be
digitized without a license?
MR. McGOWAN: Objection, foundation.
A. I know that they participate in the
Partner Program. And I know that my
understanding is that there is a, not a live
case between these entities and Google.
Q. That wasn't my question.
My question was do you have any
knowledge that Random House considers it
important for there to be a license before its
books are digitized?

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MR. McGOWAN: Objection, foundation.
3
A. So as I said, I have not spoken to
4
anyone at Random House.
Q. Do you know if there is a resolution
5
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between publishers and Google of this case that
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you're refelTing, to that requires a license?
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MR. McGOWAN: Objection, asked and
9
answered.
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You may answer.
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A. I've told you pretty much everything
12
I know about the case.
13
Q. Well, you're making assumptions -14
you made some assumptions about the fact that
publishers would want to participate in Google
15
Library Project; correct?
16
17
A. I have made, I have explained, as
supported by the individuals I reference and as
18
supported by the, you know, Web pages I
19
reference, that publishers have decided to
20
participate in the Partner Program.
21
I have stated that the Partner
22
Program involves larger pieces of the book being
23
viewable to consumers.
24
And I have, from that, from that
25

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J.A. Chevalier - CON F IDE N T I A L
analysis, noted that the Library Program
provides snippets that are smaller than what the
consumer sees under the Partner Program, and
that the Library Program, therefore -- I have,
I've concluded that the publishers -- no, have
chosen to be part of the Partner Program, rather
than merely the Library Program, which provide
smaller snippets, nor, you know, in large part,
removing the books from, you know, asking Google
to remove the books entirely.
Q. Have you concluded that publishers
wanted their books to be digitized in the
Library Project?
A. I have not concluded that publishers
wanted -- at the time the Library Project was
undertaken, I have not concluded that publishers
necessarily wanted their books to be digitized.
Q. Have you concluded that authors
wanted their books to be digitized in the
Library Project?
MR. McGOWAN: Objection, vague and
compound.
You may answer.
A. So I have concluded that the Library

°

I.A. Chevalier - CON F IDE NT I A L
Project on net, economically benefits authors.
I have not seen any evidence in the record that
that's not true -- that from the named
plaintiffs or from Mr. Aiken's deposition, that
that's, you know, incorrect.
But clearly, the named plaintiffs
assert that they did not want their books to be
digitized.
So I concede that I have seen that
those plaintiffs did not want their books to be
digitized.
Q. Have you seen evidence that other
plaintiffs, other persons, excuse me, who are
authors, did not want their books to be
digitized without permission?
A. I would say the -- well, it's not
quite the same question. I have not.
I could note the survey that asks,
the Porett Survey that asks a question close to
that question, but it's not quite the same
question, so I'll say no, I haven't seen such
evidence.
Q. Google didn't provide to you copies
of objections to the settlement from various

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authors who stated that they didn't want their
books digitized by Google without their
permission?
A. I have not seen those. I'm sure I,
you know, I -- yes, I have not seen those.
Q. It wouldn't surprise you that those
letters exist; right?
MR. McGOWAN: Objection, foundation,
vague.
You may answer.
A. So my report addresses the question
of whether the authors are benefited or harmed,
in an economic sense, from the project.
I have, I have not seen the letters
that you refer to, but, you know, I, I, I can
imagine -- I would not be surprised that some
letters of that sort exist.
Q. Well, if! have a home, and let's say
the fair market value is $500,000, and it's on a
nice piece of property, and a builder keeps
telling me that he will give me a million
dollars for my house because he's going to knock
it down, build a bigger house, and I say no.
And then one day I come home, and the

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1 J.A. Chevalier - CON F IDE N T I A L
2 house is knocked down, and there's a check for a
3 million dollars, how does that fit into your
4 economic theory?
5
MR. McGOWAN: Objection, incomplete
6
hypothetical.
7
You may answer.
Q. I've benefited?
8
9
A. Well-10
MR. McGOWAN: Objection,
11
argumentative. I'd like to proceed one
12
question at a time, please.
13
MS. ZACK: Certainly. I'll withdraw
14
the last question.
15
A. So I am not a lawyer, but my
16 understanding is that while there are very few
17 limitations to your rights, as an owner of the
18 house, though, of course, you know, the
19 government could declare your house, you know,
20 knock it down.
21
But, you know, there are very few
22 limitations to what your ownership rights mean
23 as an owner of a house.
24
There are, indeed, limitations to the
25 rights of a copyright holder. And my

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1 lA. Chevalier - CON F IDE N T I A L
2 item being searched.
3
Q. You've also said it's a benefit to
4 the authors?
5
A. I have said it's a benefit to the
6 authors.
Q. Have you done any analysis about how
7
8 quickly, over time, new books were added to the
9 Partner Program?
lOA. I have not done an analysis of how
11 quickly, over time, new books were added to the
12 Partner Program.
13
Q. You'have some footnotes on the bottom
14 of page 11, and these all refer -- well, not-15 I will take them one by one.
16
The footnote 44, U.S. top 15
17 publisher sales data, that's for in-print books;
18 right?
19
A. Yes.
Q. Footnote 45 talks about the Partner
20
21 Program. That's about in-print books; right?
22
A. I would -- I would imagine that,
23 largely, the Partner Program is about in-print
24 books.
25
Though, I believe you can be a member

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1 lA. Chevalier - CON F IDE N T I A L I
2 understanding, though I'm not a lawyer and
2
3 cannot express an opinion about exactly how my 3
4 economic analysis, you know, fits with, you
4
5 know, the case law, my understanding is, as a
5
6 copyright holder, there are limitations to the
6
7 copyright holder's rights, in that whether a
7
8 usage of the copyright holder's works
8
9 economically harms or benefits the copyright
9
10 holder, is a relevant factor in a way in which
10
11 it may not be for your house.
11
12
Q. SO your analysis is assuming that
12
13 what Google does is a fair use?
13
14
14
MR. McGOWAN: Objection, misstates.
15
You may answer.
15
A. My analysis is neither assuming, nor
16
16
17 expressing an opinion about what Google does.
17
18 It's about what whether Google does is a fair
18
19 use.
19
20
My analysis is simply stating that
20
21 the usage of the copyrighted works for the
21
22
22 production of Google Books, is a complement,
23 rather than a substitute for the sale of the
23
24 book.
24
25
So the search is a complement to the
25

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lA. Chevalier - CON F IDE N T I A L
in the Partner Program. I think there could be
examples of not-in-print Books that are
publishers, who are members of the Partner
Program.
So, for example, if they do, if
there's a link to a, there's a print-on-demand
feature, such a thing.
I believe it's not necessarily the
case that a member of the Partner Program is
providing in-print books.
Q. You don't consider a print-on-demand
book to be in print?
A. I don't know if a book that can be
printed on demand, would count as in print from
the perspective ofthe contract between the
publisher and the author, in all circumstances.
I simply cannot say that all of the
books, that all of the publishers in the Partner
Program, that a hundred percent of what they've
put in the Partner Program is an in-print book.
Q. Let's use the term commercially
available, instead of in print, to eliminate
that ambiguity.
Do you have any information that

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Books that are not commercially available, are
available in the Partner Program?
A. Well, so I believe that, so my -- I
think, in general, the books in the Partner
Program will be commercially available.
I believe it to be the case, though
I'm not certain that there may be
print-on-demand books or printable books in the
Partner Program that are, that you don't, that
are in copyright, but you don't -- but the
publisher has decided to make them available
without pay. I believe such things exist in the
Partner Program.
Q. That's based on?
A. So the reason I am hesitant, I -- so
for example, I have a number of works that
appear when you search me in Google Books, and
those are National Bureau of Economic Research
working papers.
And those works are in copyright, and
I believe the National-- I believe, though I
have not checked, that the National Bureau of
Economic Research just let's you print them,
since their primarily goal is dissemination. I

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J.A. Chevalier - CON F IDE N T I A L
function is assisting individuals find
marketing. I do not know whether he represents
any out-of-print books.
Q. What about Mr. Zohn and his company
William Morris, do you know if they represent
out-of-print books?
MR. McGOWAN: Objection, vague.
Maybe you didn't mean authors.
MS. ZACK: Books of authors.
Q. They represent authors. Do they
represent authors with respect to books that are
out of print?
A. They represent authors. I do not
know for a fact whether or not those authors
have out-of-print books.
Q. Referring to page 13 of your report.
I guess -- sorry, it carries over from page 12.
Paragraph 43, talks about iUniverse
back in print.
Did you look at any other
back-in-print programs other than iUniverse?
A. No, I did not.
Q. IUniverse makes books available for
sale for authors; right?

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A. Yes, my understanding is that
back-in-print program makes, allows, yeah, makes
books available for sale that were out of print,
yeah.
Q. Pursuant to contracts with copyright
holders; correct?
A. Yes, authors must choose to be part
of the program.
Q. Right, authors who have the right to,
as a copyright owner; right?
A. Correct.
Q. The contract provides for royalties;
correct?
A. My understanding is that if consumers
buy books from iUniverse, yes, the author gets
royalties.
Q. Part of that is authors can then
permit portions of their book to be viewed in
order to spur sales; correct?
A. Authors can choose to have parts of
their book browsable, so that, in order to
encourage sales.
Q. Ifthere is a sale, iUniverse
provides a royalty to the author; correct?

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would have to double check that.
Q. Do you know if they're in through the
Partner Program?
A. I think so. They're in copyright,
and I believe the full text appears.
Q. SO you think so, but you're not sure?
A. I think so, but I'm 110t sure. I
would be hesitant to, therefore, say
categorically that all books in the Partner
Program are commercially available.
Q. Would you say that the vast majority
are?
MR. McGOWAN: Objection, vague.
You may answer.
A. I would, I would I assume that the
majority of the books in the Partner Program are
commercially available.
Q. In footnote 47, you talk about
Richard Lowry's book, The Gulf War Chronicles,
and that's an in-print book; right?
A. Yes, I believe so.
Q. Do you know whether Mr. Harris
represents any out-of-print books?
A. I do -- well, Mr. Harris's primary

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2
MR. McGaW AN: Objection, fOnTI.
3
You may answer.
4
A. My understanding is that if there's a
5
sale, iUniverse provides a royalty to the
6
author.
7
Q. Referring you to paragraph 46, you
8
say, "A related benefit of the search capability
9
of Google Books is its ability to increase
10
interest in and sales of books that may be
11
relatively unknown, rare, or out-of-print.
12
Research on the effect of the Intemet supports
13
the theory of a "long tail" or the creation of
14
marketplaces where buyers and sellers, who
15
otherwise would not find each other, can meet."
16
And you say, "I expect that Goog1e
17
Books has the same effect."
18
Do you have any empirical evidence to
19
back that up?
20
A. So empirical evidence to back up that
21
consumers can find books through Goog1e Books or
22
empirical evidence that they, that they will buy
23
used books, that they have bought used books as
24
an outcome of that?
I do not have any -- I have not done
25

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any empirical analysis of the sales of books
that were on Google Books.
Q. Can you provide me an example where
there's been a marketplace created where a
particular buyer and a particular seller found
each other after using Google Books conceming
an out-of-print book?
MR. McGOWAN: Object to form.
You may answer.
A. No, I don't have any data about that.
MR. McGOWAN: I will note for the
record, I think a fire alarm went off.
Off the record.
(Discussion off the record.)
Q. Paragraph 47 on page 14, you say,
"While I do find substantial evidence that
Google Books is a complement to the purchase of
a book and thus, should stimulate book sales, I
have not found evidence that Google Books
searches are a substitute for the purchase of
books."
So where did you look for the
evidence?
A. So I think the resources are in the

J.A. Chevalier - CON F IDE N T I A L
record. So, you know, first, for example, in
the depositions of the named plaintiffs, they do
not cite any evidence that Google Books is a
substitute for the purchase of the book, that
using Google Books as a substitute for the
purchase of the books.
Mr. Aiken, in his deposition, says
that it is his belief, and he's an expert in the
industry, that Goog1e Books, the Goog1e Book
search function on net is a compliment to the
sale of the books.
And the, I might add, you know, the
various, of course, these aren't a random
sample, but I don't know where I would obtain
one, the, you know, testimonials that I cite
from the Google Books website, describe authors,
you know, have discussions of authors who view
the Google Books project as a complement to the
sale oftheir books.
So I'm, I haven't seen anything in
the record, provided by the plaintiffs, to
suggest that the snippets provided by Google
Books are substitutes for the sale of the book.
Q. Well, the -- you referred to author

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endorsements on Google Books.
Were those endorsements of snippets
or Partner Program books?
A. So there, so for example, Mr., Mr. -sorry, Mr. Lowry, my understanding from his
snippets, from his discussion, is that after his
book appeared in Google Books as part of the
Library Program, the sales increased.
But I, the description there may not
have been in, you know, entirely complete. So I
believe what I said is exactly right, I have not
seen any evidence that snippets have served as a
substitute for the book.
Q. Have you done any -- but you haven't
done any empirical analysis where you've
identified certain books that are available in
snippet view, and then any research about their
sales?
A. So since I don't have any access to
data about the sales of books, I can't do that.
Q. Where would you, where would you get
access to data about the sales of books?
A. Well, I mean I, for -- I mean I
could, I think it would be a difficult, if not

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JA Chevalier - CON F IDE NT I A L
impossible project, nonetheless.
But, for example, if one had, you
know, access to Amazon data, there may be things
that one could do.
Q. Any other data that you can think of?
A. I think similarly, if you had access
to, you know -- well, I think Amazon data would
be probably the primary or best source, but
there could be other, you know, other book
sellers' data.
Q. You don't have access to that because
it hasn't been provided to you by Google or any

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compound.
You may answer.
A. So, I don't have access to Amazon's
proprietary data.
Q. Referring you to paragraph 48, you
say, "A related question to the one discussed
above is whether, in the absence of Google
Books, a market might have arisen in which
authors stood to benefit in ways they do not
currently."

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the Copyright Clearance Center, for instance?
A. So, I have a, I have a familiarity
with that Copyright Clearance Center. That
Copyright Clearance Center is in the category of
entities that I describe in my report that
provides more than snippets, that provide users
with not full text, like chapters, something
like chapters of work.
So that is in the category of works
that I describe -- of licensing scenarios that I
describe and report in my report as dissimilar
to the services provided by Google Books.
Q. What would you consider to be a
similar licensing service, if any, to licensing
of snippets?
MR. McGOWAN: Objection, foundation.
You may answer.
A. So there are commercial entities that
provide indexing functions and searchability -some index and search functions.
They are different from Google Books,
but such entities, you know, serve a somewhat
similar function to users, and I have not found
any examples of such entities that pay the

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authors to index their work.
Q. Have you found evidence where
entities have paid for indexes?
MR. McGOWAN: Objection, vague.
You may answer.
A. So is the indexing -- are there
entities that, that want to purchase indexes?
Q. Um-hmm.
A. Yes.
Q. Can you give me some examples of
that?
A. So for example, I was a member of the
American Economic Association Executive
Committee.
The American Economic Association
creates a product called Econlit. Econlit is a
product where a human being reads -- I would
have used the word scan, but that might be
confusing in this context.
A human being reads economics
articles, writes down key words, and the product
that is sold to libraries is a searchable index
of those key words.
Q. SO the library pays for the index?

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lA. Chevalier - CON F IDE N T I A L
Did you consider any markets for
collective licensing for digitization of books?
MR. McGOWAN: Objection, foundation.
You may answer.
A. So as I discuss in the report, I
considered, I considered markets for licensing
of -- I observed that authors have been paid in
situations in which books were digitized for the
purpose of allowing, using, displaying to users
the full text of the book, but I have not seen
an example where firms pay authors for the right
to scan and index their work.
Q. There is, albeit, as you have said, a
small amount of revenue, but there is a revenue
component to the Partner Program; correct?
A. There is a revenue component to the
Partner Program.
Q. Have you looked at other collective
licenses for other copyrighted content -MR. McGOWAN: Objection, foundation.
Q. -- to determine how those collective
licenses operate?
A. So can you be more specific?
Q. Did you do any research concerning

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A. The library pays for the index.
Q. Have you heard of Marc Indexing for
libraries?
A. I have heard of that.
Q. Do you know whether or not libraries
pay for that?
A. My understanding is that libraries
pay for that.
Q. In the area of music, would you
consider a ring tone to be analogous to a
snippet?
MR. McGOWAN: Objection, vague.
You may answer.
A. No, I wouldn't consider a ring tone
to be analogous to a snippet.
Q. Why not? I meant a snippet from a
book.
A. Yes, I think a ring tone is a -well, I have not analyzed the market for ring
tones, but I would say that snippet is a de
minimis fraction of the total book, and that a
ring tone is not.
Q. On what basis do you say that one is
de minimis and one isn't?

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A. The snippet is, given the number of
snippets that are displayed for a user, the
snippet is a small fraction of the total book.
And I have not studied the market for
ring tones, but, you know, I have heard ring
tones, and ring tones are recognizable chunks of
a song.
Q. Do you know whether there's a market
for licenses for ring tones?
A. I believe there is a market for
licenses for ring tones.
Q. Where do you have that information -what is the basis for that belief?
A. I believe that I have read in the,
you know, press that there's a market for ring
tones. But I don't know much about it.
MR. McGOWAN: If you wouldn't mind
taking a very short break when you're done
with this line, that would be useful.
MS. ZACK: Sure. Let me just see
where I am. We can take a break now, if you
want.
(Brief recess taken.)
FURTHER EXAMINATION

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J.A. Chevalier - CON F IDE N T I A L
BY MS. ZACK:
Q. Back to page 14.
A. Okay.
Q. In paragraph 49 you state, "The
underlying premise of any hypothetical market
runs counter to the basic economics of this
industry outlined above - there is no reason to
expect that a market would arise between
copyright holders (as sellers) and Google (as
the buyer), when, as discussed above, it is the
copyright holder who is benefitting from the use
of the copyrighted material."
Are you taking the position that
Google does not benefit from the use of the
copyrighted material?
A. No, so Google clearly uses the
copyrighted material as an input to its product.
Just as, you know, other indexers who sell
indexes, use the material as an input to their
products.
So, and then they sell that product
or in Google's case, advertise around that
product. So I'm not taking the position that
Google does not benefit.

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Q. SO you agree that Google does benefit
from the use of the copyrighted materials?
MR. McGOWAN: Objection, vague.
You may answer.
A. So Google, you know, Google, Google
benefits from the use of the copyrighted
materials, in that they use the copyrighted
materials as an input to the product.
Q. You believe that Google benefits from
the product; right?
MR. McGOWAN: Objection, vague.
You may answer.
A. So I believe that Google, I believe
that Google, on net, benefits from continuing to
offer the product.
Q. Have you discussed with anyone from
Google whether or not Google would pay for the
product if they -- for the copyrighted
materials, if they were required to by the
Doctrine of Fair Use?
MR. McGOWAN: What?
MS. ZACK: I'll restate it.
Q. Have you discussed with anyone from
Google whether they would pay for the

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copyrighted material, if it was determined that
they could not use it under the Copyright Act
without a license?
MR. McGOWAN: Vague.
You may answer.
A. Okay, so as I said before, I have not
entered into conversations with executives at
Google.
Q. You don't really have a full
understanding of how Google benefits from the
use of the copyrighted materials; do you?
MR. McGOWAN: Objection, vague.
You may answer. Foundation.
You may answer.
A. I understand the types of ways in
which Google benefits from the use of the
copyrighted materials, but I don't -- I can't
add up the benefit to Google of the use of the
copyrighted materials.
Q. Well, you haven't, you don't fully
understand how they use aU the materials that
they accumulate in their search engine to
benefit their business; right?
MR. McGOWAN: Objection, vague.

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J.A. Chevalier - CON F IDE N T I A L I J.A. Chevalier - CON F IDE N T I A L
2
A. So I don't know whether they have
You may answer.
3 used the books for some other purpose, outside
A. So I do not know all of the -- I do
not all -- I cannot catalog all of the benefits
4 of the Google Books Project.
to Google of their, of providing the search
5
Q. You don't know one way or the other?
functionality.
6
A. I don't know whether they have made
7 use of the books for some purpose other than the
Q. Have you looked at their public
documents?
8 Google Books project.
9
Q. SO you don't know whether they've
A. I've looked at a number of Google
public documents.
lOused the digitized books for purposes of
Q. Have you looked at their lO-K?
11 improving their general search engine?
12
MR. McGOWAN: Objection, vague.
A. I have not looked at their lO-K's
pursuant to this matter.
13
You may answer.
Q. Have you looked at any oftheir
14
A. I don't know whether they have used
earning statements?
15 the books for a purpose other than providing the
A. I have not looked at their earning
16 Google Books project.
statements pursuant to this matter.
17
Q. You don't consider that relevant to
Q. SO your statement that there is no
18 your analysis?
reason to expect that a market would arise
19
A. I don't consider that relevant to my
between the copyright holders and Google because 20 analysis.
the copyright holders benefit, discounts the
21
Q. You say at the end, "I have seen no
fact that Google also benefits?
22 evidence that any firm has paid, for example,
23 for permission to display snippets"?
MR. McGOWAN: Objection, vague.
24
A. Correct.
You may answer.
25
Q. Are you talking about in search
A. So as I describe in the report, my

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J.A. Chevalier - CON F IDE N T I A L
conclusion that no alternative market would
arise for payment for the indexing functions,
derives from my, from, from a few things.
One piece is that the substantial
benefit that the copyright holder gets from
being indexed.
And the second is that I am not aware
of other markets in which index service -indexing services are provided where the author
or publisher is paid for being included in that
indexing service.
Q. Well, Google Books is more about just
indexing, it's also about digitizing entire
books; right?
MR. McGOWAN: Objection, vague.
You may answer.
A. I understand that books are
digitized. The word digitized for it to create
Google Books.
Q. Do you know whether or not Google
makes other use of the digitized books beyond
merely indexing them?
MR. McGOWAN: Same objection.
You may answer.

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1 J.A. Chevalier - CON F IDE NT I A L
2 engines or anywhere?
3
A. I'm talking about in general.
4
Q. Are you familiar with the market for
5 permissions for display of portions of books in
6 other copyrighted books and other matter?
7
MR. McGOWAN: Objection, foundation,
8
vague.
9
You may answer.
lOA. Sorry, can you be more specific?
11
Q. Sure. Are you familiar at all with
12 the concept that if excerpts are used from one
13 book, copyrighted book, and either another book
14 or television or something like that, that
15 permission fees are paid?
16
MR. McGOWAN: Objection, foundation.
17
You may answer.
18
A. So, for example, so I haven't studied
19 that.
20
Q. Were you aware that that market
21 existed?
22
MR. McGOWAN: Objection, foundation.
23
You can answer.
24
A. I think it depends on the extent of
25 the market. So, for example, I know that

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MR. McGOWAN: Objection. Incomplete
hypothetical.
You may answer.
A. Would my opinion about what change?
Q. You said it was de minimis?
A. So if -- I said it was de minimus for
what purpose. So would my opinion about what
section of my report change, if snippets were
more than three lines?
Q. Any section of your report.
A. So if a snippet were 10 lines, I
don't think there's any section of my report
where my conclusions would change.
Q. Is there some amount of lines where
you can pick -- conclusions would change?
A. As I've said in my report, I know
that the amount of text that Google displays,
under the Library Program, is smaller than the
amount of text that appears to be chosen by
publishers and authors to display in standard
commercial use.
So to the extent that that's true, my
conclusions would remain the same.
Q. Do you think there's a market for
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2
permission fees are paid for the inclusion of
3
chapters of books in my course packet.
4
Q. Do you know whether permission fees
5
are sometimes paid for quotes that are included
6
in books, you know, at the beginning of, above
7
like chapter one, where there's a quote, do you
know if permission fees are ever paid for that
8
9
type of citation?
MR. McGOWAN: Objection, foundation.
10
You may answer.
11
12
A. I don't know the answer to that.
13
Q. Your definition of snippets is, as
14
you previously stated, just three lines?
15
MR. McGOWAN: Objection. Misstates,
16
asked and answered.
You can answer.
17
18
MS. ZACK: I don't want to misstate.
19
A. So my understanding is -- oh, I'm
using the term snippets here to describe very
20
21
short sections of text which, you know, in the
22
case of the Google Books, is roughly three
23
lines.
Q. If snippets are 10 lines, would your
24
opinion change?
25

J.A. Chevalier - CON F IDE N T I A L
digital copies of books?
MR. McGOWAN: Objection, vague.
You may answer.
A. So what do you mean do I think
there's a market for digital copies of books?
Q. A market in which someone would pay
for digital copies of books.
A. Do I think a market exists or could
exist?
Q. Either. Well, does it exist?
A. So I think, you know, ebooks are
bought and sold, so I think, you know, I would
say that there's a market for digitized books.
Q. SO there's currently a market for
digitized books?
MR. McGOWAN: Objection, vague.
You may answer.
A. If I think ebooks are digitized
books, I think there's a markets for ebooks.
Q. I mean Google's currently selling
ebooks; right?
A. Yeah, you can -- you mean the books
that you can purchase via Google Play? Is that
what you mean?

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2
Q. I'm asking you whether Google's
2
3 currently selling ebooks?
3
4
A. So okay -4
Q. It could be a yes-or-no answer.
5
5
A. Okay, fine. All right, okay, I
6
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7
7 wasn't sure what you were referring to.
8
Yes, my understanding is you can buy
8
9 ebooks through Google Play.
9
10
10
Q. You understand that libraries buy
11
11 ebooks too; right?
12
A. I understand that libraries sometimes
12
13 buy ebooks, yes.
13
14
Q. When Google digitized its books in
14
15 the Library Program, it didn't pay the copyright
15
16 owners for that right; did it?
16
17
MR. McGOWAN: Objection to the extent
17
18
18
it calls for a legal conclusion.
19
You may answer.
19
20
20
A. So my understanding is that when
21 Google digitized books as part of the Library
21
22 Program, it did not pay authors or publishers
22
23 for the, for the scanning.
23
24
Q. I previously asked you about
24
25 collective licensing, and I asked you about the
25

J.A. Chevalier - CON F IDE NT I A L
Q. You say they "arose as a solution to
the problems of widely, disbursed rights holders
and widely disbursed music users."
A. Correct.
Q. With respect to Google Books, are
there widely disbursed rights holders?
A. There are widely disbursed rights
holders.
Q. Are there widely disbursed users of
Google Books?
A. So here I'm referring to the entity
that -- not the end user, but the entity that
would, that is making use of the license.
And so in the music case, the music
users were widely disbursed. But in the Google
Books case, Google Books is a single entity.
It's not widely disbursed.
Q. SO here you are saying the music
users are like restaurants, etcetera?
A. Correct.
Q. This is all about performance rights?
A. This discussion is about performance
rights.
MS. ZACK: Let's mark as the next
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lA. Chevalier - CON F IDE N T I A L

2 CCc.
3
Are you aware of any other collective
4 licensing organizations? Are you familiar with
5 any?
6
A. Do you mean collective licenses
7 organizations for books?
8
Q. For copyrighted material.
9
A. So I have some familiarity, as you
10 know, as I said I've I disclosed some work for
11 SESAC, and I have some familiarity with
12 licensing of performance rights for music.
l3
But music licensing is very
14 complicated, and I've only worked on narrow
15 portions of it. So I have some familiarity with
16 it,but-17
Q. What about licensing for music
18 lyrics, as opposed to performance rights?
19
A. I'm not familiar with that market, if
20 it exists.
21
Q. In paragraph -- I'm sorry, footnote
22 63 on page IS?
23
A. Um-hmm, yes.
24
Q. You do talk about ASCAP and BMI?
25
A. I do.

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J.A. Chevalier - CON F IDE N T I A L
exhibit, a series of pages from the Internet
concerning the acquisition by Google of
Rightsflow.
(Defendant'S Exhibit 97, a series of
pages from the Internet concerning the
acquisition by Google of Rightsflow,
marked for identification, as of this
date.)
Q. Are you familiar with Rightsflow?
A. No.
Q. Or Google's acquisition of this
collective licensing company?
A. No.
Q. If you look at the second page of
this document, it says -- the second page,
second paragraph, "The acquisition gives
video-sharing service Y ouTube access to
technology to help it manage its relationship
with one of the most fragmented and unwieldy
parts of the music industry: Music publishing.
Music publishing concerns the copyrights on
songs' lyrics and melodies, as distinct from a
particular recording of a given song."
Do you see that?

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A. Yes.
Q. SO you were not aware, prior to now,
that there was a -- there is a collective
licensing organization for copyrighted lyrics?
MR. McGOWAN: Objection. Misstates.
A. So as I read this, it says, "Music
publishing concerns the copyrights on songs'
lyrics and melodies, as distinct from a
particular recording of a given song."
My understanding is that, my
understanding of your previous question was
performance rights are also rights for -- that
flow to the composer and lyricist of the song.
Those are composer's rights. So I
don't, I -- from what I read here, I don't know
this to be different than what I described.
It may be, but I don't know this to
be different than what I described ASCAP and BMI
to be.
Q. Would you agree that the collective
licensing has developed in response to changes
in technology?
MR. McGOWAN: Objection, vague.
You may answer.

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A. As I described in my report,
collective, the collective licensing that we
observe in music -- well, this is, this is a new
entity by which I don't know anything.
But the description that I gave of
the music rights organizations, that collective
licensing process is a very old process.
Q. When you say, "very old," how old are
you talking about?
A. Well, I don't remember precisely, but
my recollection is, you know, dates from Tin Pan
Alley in the 1920's.
Q. Do you have any information about
whether or not different types of licenses have
been developed as new technologies have come
into existence?
MR. McGOWAN: Objection, vague.
You may answer.
A. The performance license that I
describe, I believe, incorporates new
technologies, but I do not know about the
development of new types of licenses. That may
exist, but I haven't studied it.
Q. SO you don't know one way or the

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I.A. Chevalier - CON F IDE N T I A L
other?
A. Correct.
Q. Have you looked at any of the
licenses available from Copyright Clearance
Center?
MR. McGOWAN: Objection, foundation.
Q. In connection with this assignment?
MR. McGOWAN: Objection, foundation.
You may answer.
A. I have not looked at licenses from
Copyright Clearance Center.
Q. Have you looked at licenses from any
other organization in connection with this
assignment?
A. I think the list of materials I have
is complete. I have not looked at other
licenses that are not referenced here.
Q. If a license for book digitization
developed a collective license, would that be a
new good?
MR. McGOWAN: Objection, vague.
You may answer.
A. So what do you mean by a collective
license for book digitization?

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lA. Chevalier - CON F IDE N T I A L
Q. A license where various rights
holders give an intermediary the right to
license all or portions of their work to third
parties.
A. So if you mean an organization where
existing rights holders contribute their works
in order for those works to be jointly licensed,
I don't believe that that would be a new good
under the definition I've proffered, because a
new good serves a previously unmet or poorly met
need.
Q. SO it could be a new product, but not
a new good?
A. I believe an amalgamation of -- an
amalgamation of opt-in rights holders who have
come together to form an organization, would not
really constitute a new good because it doesn't,
it doesn't particularly meet an unmet need.
So it would be a product. It would
be a product, but it wouldn't substantially meet
an unmet need.
Q. When you say, "It wouldn't meet an
uumet need," from whose perspective would it not
meet an uumet need?

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