The Authors Guild v. Google, Inc.

Filing 45

JOINT APPENDIX, volume 5 of 6, (pp. 1201-1500), on behalf of Appellant Jim Bouton, Joseph Goulden, Betty Miles and The Authors Guild, FILED. Service date 04/07/2014 by CM/ECF.[1196280] [13-4829]

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

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

JOINT APPENDIX
(UN-SEALED REDACTED VERSION)
Volume 5 of 6 (Pages A-1201 to A-1500)
DURIE TANGRI
217 Leidesdorff Street
San Francisco, California 94111
[phone]
– and –
WILMER CUTLER PICKERING HALE
AND DORR LLP
1875 Pennsylvania Avenue, NW
Washington, DC 20006
[phone]
Attorneys for Defendant-Appellee

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

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

A-1

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

A-53

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

A-65

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

A-78

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

A-80

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

A-83

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

A-127

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

A-175

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

A-191

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

A-201

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

A-203

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

A-222

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

A-228

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

A-241

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

A-243

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

A-245

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

A-247

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

A-249

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

A-251

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

A-259

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

A-267

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

A-270

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

A-283

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

A-298

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

A-307

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

A-310

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

A-316

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

A-322

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

A-325

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

A-327

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

A-335

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

A-340

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

A-342

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

A-392

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

A-395

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

A-398

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

A-400

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

A-417

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

A-429

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

A-435

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

A-438

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

A-441

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

A-444

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

A-510

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

A-516

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

A-522

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

A-532

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

A-542

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

A-546

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

A-549

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

A-555

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

A-559

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

A-564

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

A-568

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

A-569

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

A-570

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

A-579

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

A-580

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

A-582

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

A-586

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

A-591

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

A-593

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

A-685

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

A-686

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

A-687

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

A-688

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

A-705

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

A-707

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

A-708

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

A-712

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

A-713

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

A-714

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

A-748

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

A-749

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

A-750

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

A-782

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

A-797

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

A-798

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

A-808

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

A-825

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

A-852

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

A-909

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

A-927

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

A-949

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

A-979

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

A-982

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

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

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

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

xv
Page
Exhibit 9 to Gratz Declaration –
Excerpts of the Deposition Transcript of Paul
Aiken...................................................................... A-1412
Exhibit 10 to Gratz Declaration –
Excerpts of the Deposition Transcript of Betty
Miles ...................................................................... A-1419
Exhibit 11 to Gratz Declaration –
Excerpts of Plaintiffs’ Reponses and Objections
to Defendant Google Inc.’s First Set of
Interrogatories to Plaintiffs The Authors Guild,
Inc., Jim Bouton, Joseph Goulden and Betty
Miles herein, served on April 27, 2012.................. A-1425
Exhibit 12 to Gratz Declaration –
Excerpts of the Deposition Transcript of Jim
Bouton.................................................................... A-1432
Exhibit 13 to Gratz Declaration –
Excerpts of the Deposition Transcript of Joseph
Goulden.................................................................. A-1435
Exhibit 14 to Gratz Declaration –
Exhibit 6 to the Deposition of Paul Aiken ............. A-1445
Exhibit 15 to Gratz Declaration –
Deposition Transcript of Daniel Gervais ............... A-1448
Exhibit 16 to Gratz Declaration –
Deposition Transcript of Benjamin G. Edelman .... A-1509
Exhibit 17 to Gratz Declaration –
Exhibit 5 to the Deposition of Jim Bouton ............ A-1588
Exhibit 18 to Gratz Declaration –
Exhibit 2 to the Deposition of Betty Miles ............ A-1590

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

A-1201
Case 1:05-cv-08136-DC Document 1073-7

Filed 08/26/13 Page 30 of 32

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A-1202
Case 1:05-cv-08136-DC Document 1073-7

Filed 08/26/13 Page 31 of 32

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A-1203
Case 1:05-cv-08136-DC Document 1073-7

Filed 08/26/13 Page 32 of 32

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A-1204
Case 1:05-cv-08136-DC Document 1073-8

Filed 08/26/13 Page 1 of 1

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,

:
:
:
:
:
Plaintiffs,
:
:
v.
:
:
Google Inc.,
:
:
Defendant.
:
:
:
------------------------------------- x

Case No. 05 CV 8136-DC

EXHIBIT

4

TO THE DECLARATION OF MICHAEL J. BONI IN SUPPORT OF PLAINTIFFS’
OPPOSITION TO DEFENDANT GOOGLE’S MOTION FOR SUMMARY JUDGMENT

[FILED UNDER SEAL]

A-1205
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 1 of 39

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,

:
:
:
:
:
Plaintiffs,
:
:
v.
:
:
Google Inc.,
:
:
Defendant.
:
:
:
------------------------------------- x

Case No. 05 CV 8136-DC

EXHIBIT

5

TO THE DECLARATION OF MICHAEL J. BONI IN SUPPORT OF PLAINTIFFS’
OPPOSITION TO DEFENDANT GOOGLE’S MOTION FOR SUMMARY JUDGMENT

A-1206
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 2 of 39

THE

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BETH B. GOLUB

-T E 5 ,

A-1207
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 3 of 39

Hundreds of Spectacular
Questions on Minute Details
from TV's Greatest Show
about Absolutely Nothing

BETH B.GOLUB

A

CITADEL PRESS BOOK

Published by Carol Publishing Group

A-1208
Case 1:05-cv-08136-DC Document 1073-9

Copyrignt © 1994 by Betn B. Golub
All rignts reserved. No part of this book may bc rcproduced in any
form, except by a newspaper or magazine reviewer who wishes to quote
brief passages in conneetion with a rcvicw.

/

A Citadel Press Book
PubliShed hy Carol Publishing Group
Citadel Press is a rcgistered trademark of Carol Communications, Inc.
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I

Carol Publishing Group books are available at special discounts for
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Library of Congress Cataloging-in-Publication Data

9

I .... .

~
Filed 08/26/13 Page 4 of 39

Golub, BeLh B.
The "Seinfeld" aptitude test: hundreds of spectacular questions
on minute details from TV's grcatest show about absolutely nothing I
by Beth B. Golub.
p. cm.
"A Citadel Press book."
ISBN 0-8065-1583-X (pbk.)
1. Seinfeld-Miscellanea. 1. Title.
PN1992. 77. S1285G65 1994
791.43'72-dc20
94-20348
CIP

A-1209
·

.

~

,:;.

..

-

... Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 5 of 39

CONTENTS
Introduction

IX

The Seinfeld Aptitude Test Scoring System

Xl

LEVEL 1; Wuss Questions

3

MATCHING QUIZZES

!

Family Trees

22

New York, New York No. 1

24

LEVEl 2: This, That, and the Other Questions

29

MATCHING QUIZZES

Edibles

47

Oh, Boy!

48

Potpourri

49

LEVEl 3; Tough Monkey Questions

53

MATCHING QUIZZES

A.K.A.

72

New York, New York No.2

73

Edibles, Too

75

A-1210
Case 1:05-cv-08136-DC Document 1073-9
viii

Filed 08/26/13 Page 6 of 39

Con tents

LEVEL 4: Atomic Wedgie Questions

79

MATCHING QUIZZES

New York, New York No. 3
More Potpourri

LEVEL 5: Moster of Your Domain Questions

/
/

98

100

103

MATCHING QUIZZES

Answer Key

107

A-1211
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 7 of 39

INTRODUCTION
It was a nothing that he knew too well. It was all a
nothing ... Some lived in it and never felt it but he knew
it all was nada y pues nada y nada y pues nada.
-ERNEST HEMINGWAY, A Clean, Well-Lighted Place

/

5

explains the formal-bending premise and appeal of
TV's most innovative sitcom, Seinfeld. Each episode
is devoted to the trifling, picayune, and petty annoyances encountered by the show's characters on a daily
basis-looking for a parking space, missing rent-a-car
reservations, dilemmas in dating, anxiety about switching
barbers.
At the center of these misadventures is stand-up comedian
Jerry Seinfeld, who plays himself. Jerry is the nucleus of a
fabulous foursome consisting of best friend George Costanza,
ex-girlfriend Elaine Benes, and eccentric next-door neighbor
Kramer. Together they ponder the meaning of the mundane:
Jujyfruits, atomic wedgies, fake wood wallpaper, puffy
shirts, open-lipped kisses. The more insignificant, the
better. Clearly, Seinfeld has succeeded in transforming
nothing into something that audiences find endlessly fascinating. For these minutiae-minded viewers, this book is the
ultimate diagnosis of their devotion.
0

*Place and character names not shown on the screen or listed in the credits are
spelled phonetically.

ix

A-1212
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 8 of 39

THE SEINFELD
APTITUDE TEST
SCORING SYSTEM
he Seinfeld Aptitude Test consists of 550 questions that
are divided into five levels of increasing difficulty,
culminating in the Mastel' of Your Domain Questions.
As a respite between levels, twist open a Snapple, doubledip a chip, and demonstrate your Seinfeldian savvy by
'
tackling the ten (noncredit) topical matching quizzes. Mterwards, go back and see how you scored on the 550 questions.
HONORARY TITLES
George: You can't sustain a
romance or hold a job. Not that

CORRECT ANSWERS

0·l4.0

there's anything wrong with
thaL.

141·280

Kramer: You could have
scored higher hut were inter·
rupted by an impending
intestinal requirement.

281.420

Elaine: You're a tenacious
professional who is test smart,
but whose IQ scems to fluctuate widely.

421·550

Jerry: You're superman.

xi

A-1213
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 9 of 39

A-1214
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 10 of 39

THIS, THAT,
AND THE OTHER
QUESTIONS
NEATlY DARKEN THE INTENDED CIRCLE OR WRITE
OUT YOUR ANSWER. USE A NO.2 PENCIl.

1 What game does George play with the Bubble Boy?

® Chutes and Ladders
® Pictionary
© Trivial Pursuit
@ Twister

2 What is Kramer's first name?
3 Elaine is in the bridal party of a lesbian wedding as
what?
4 According to Kramer, all of the following are scams
except
® the Dewey decimal system
® free-range chicken
© one-hour Martinizing
@ the carpet sweeper

29

A-1215
Case 1:05-cv-08136-DC Document 1073-9
30

Filed 08/26/13 Page 11 of 39

The Sein,feld Aptitude Test

5 What is Jerry's last guess to recall a date's name that
rhymes with a female body part?

12 Who:
a phony e

6 Which of Elaine's cohorts has not seen her naked?
® Jerry

13 Geor
girlfriend
® The p
® The a
© The p

@ George

/
I

© Kramer

7 What happens to Kramer at Elaine's charity bachelor
auction?
® His derriere is pinched by an admiring woman.
@ He falls off the runway into the crowd.
© He is sold to the lowest bidder.

14 Who
business I

15 John
girlfriend:

8 Whose father wears sneakers in the pool?
® Jerry's

16 Wha:

@ George's

© Elaine's

17 Who

@ Kramer's

when he!

9 How does Elaine develop back trouble while staying

18 Whal

with the Seinfelds?

constantly
® Huck
® Biff 1

10 Calvin Klein hires Kramer to model what?

© 10m J

11 After witnessing a bris, George reacts by
® throwing up
@ fainting

© breaking out in hives
@ breaking into song

@ Holde

19 Elair
what artie

A-1216
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 12 of 39

Level 2: This, That, and the Olher Questions

31

12 Whose address and phone number does George use as
a phony employment reference?

13 George claims he has no "hand" with which
girlfriend?
® The pianist
® The accountant
© The performance artist

14 Who is Kramer's chubby buddy and sometimes
business partner?

15 John E Kennedy, Jr., befriends which of Jerry's exgirlfriends?

16 What does Jerry's cousin Jeffrey do for a living?

17 Who substitutes for Jerry's neighborhood car parker
when he goes on vacation?

18 What figure in American literature does Jerry
constantly compare George to?
® Huck Finn
® Biff Loman
© Tom Joad
@ Holden Caulfield

19 Elaine is ejected from Yankee Stadium for wearing
what article of clothing?

A-1217
Case 1:05-cv-08136-DC Document 1073-9
32

Filed 08/26/13 Page 13 of 39

Th e S einfeld A pti Lu de T es L

20 Jerry and Kramer witness what surgical procedure?
® A splenectomy
® An appendectomy
© A vasectomy
21 How does George avoid taking an IQ test administered

28 How
locked apG
® She kit
® She ell
© She sp
@ She drl

by his girlfriend?

29 What
I

I

!

22 Kramer poses as Elaine's new boyfriend so that she
can break up with
® her writer boyfriend
® her psychiatrist boyfriend
© her baseball player boyfriend
@ her artist boyfriend

compartme

30 Who (
cabinets?
31 Jerry l
of lining?

23 What is Elaine's ex-roommate's occupation?

24 Jerry wears his watch on which wrist?
25 Elaine describes a couple's ugly newborn baby as
looking like
® a pekinese
® a troll
© Granny

32 Accorc
damaging e
® When h
® When h
© When h
@ When h

33 What ii
that opens a

26 What was George's first career on the show?

27 Elaine gets George a job in her office doing what?

34 Kramer
what?

A-1218
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 14 of 39

Level 2: This, Tbrrt, rrnJ the Other QucsliollS

33

28 How does Elaine escape from Crazy Joe Davola's
locked apartmenL?
(A) She kicks him in the groin.
® She clubs him in the knee.
© She sprays him with cherry Binaca.
@ She drops a bowling ball on his toe.

29 What video of George's is stolen from Jerry's glove
compartment?

30 Who always snoops in other peoples' medicine
cabinets?

31 Jerry buys an expensive suede jacket with what kind
of lining?

32 According to George, what was the single most
damaging
® When
® When
© When
@ When

experience of his life?
he broke his parents' favorite statue
he had his first sexual experience
he received his SAT scores
he saw his father naked

33 What is the name of the Pakistani-owned restaurant
that opens across from Jerry's apartment?

34 Kramer envisions creating a cologne that smells like
what?

A-1219
Case 1:05-cv-08136-DC Document 1073-9
34

Filed 08/26/13 Page 15 of 39

T h e S einfeld A p t i t u d e T es t

35 Elaine meets a pediatrician in the Hamptons who
uses what word to describe her beauty?
® "Bitchin'"
® "Radiant"
© "Breathtaking"
@ "Scrumptious"

36 What ploy do George, Jerry, and Elaine utilize to get

® A mohai
© A Salad
@

A case

0

43 Kramer
video store w

seated at a busy Chinese restaurant?

44 How is (
in his parent!

37 According to George, what famous news personality

45 What is

has had a nose job?
® Connie Chung
® Peter Jennings
© Willard Scott

topless at the

® "Yo Yo M
.
® "Boutros :
© "Nice rael

38 What is Kramer's apartment number?

46 What sel
Elaine's baby

39 How does Jerry get his watch back?

47 After his
40 George's decorated bedsheets feature what animals?
® Dinosaurs
® Dalmations
© Ducks

distressed abo
® His TV
® His watch
© His answe:
@ His stereo

41 Why is Elaine mortified by her Christmas-card photo?

42 Jerry receives what defective birthday gift from
Kramer?
® A two-line phone

48 George s{
store. What d€

A-1220
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 16 of 39

Level 2: This, That, and the Other Questions

35

® A mohair sweater
© A Salad Shooter
@ A case of motor oil

43 Kramer romances a lesbian woman he meets in a
video store who shares his passion for what sport?
44 How is George punished for having sex with a woman
in his parents' bed?

45 What is Jerry's response to seeing George's girlfriend
topless at the beach?
® "Yo Yo Ma!"
® "Boutros Boutros-Ghali!"
© "Nice rack!"

46 What service people are working in the midst of
Elaine's baby shower for a college friend?

47 After his apartment is robbed, Jerry is most
distressed about which missing item?
® His TV
® His watch
© His answering machine
@ His stereo

48 George sells his father's old clothes to a used clothing
store. What defect do they have?

A-1221
Case 1:05-cv-08136-DC Document 1073-9
36

Filed 08/26/13 Page 17 of 39

T he S ei nfeld A pli t ude T es t

49 Kramer leaves what item in Jerry's stolen car that is,

57 How m

remarkably, returne d to him?
® His gloves
® His golf clubs
© His carpet sweeper

@40

50 What is George's immediate response to seeing his

58 What i,

girlfriend's nose unbandaged?

51 Why does Kramer leave New York for California?

52 George is announced by the doorman at the NBC

1,

® 10

®

20

© :10

59 Accord
he fasted?

president's apartm ent building as
® Mr. Cabana
® Mr. Bonanza
© Mr. Cantstandya

60 Kramer
the voice of
® Mary H
® Dr. Rutl
© Charo

53 How does Elaine discover that Jerry's girlfriend's
breasts are real?

61 George

54 How is George's hand-modeling career cut short?
55 Name the woman who dates both Jerry and George at
different times.
® Marlene, the sexy southern cashier
® Jodi, the masseuse
© Noel, the concert pianist

56 Who creates a "written list" of excuses to avoid an
annoying friend?

62 Mr. Sei
® The che:
® The dipl
© The Prir
@ The exe!
63 Crazy J
circus chara
64 Who p}

A-1222
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 18 of 39

Level 2: This, That, and the Other Questions

37

57 How many pairs of undershorts does George own?
®10
® 20
© 30
@ 40

58 What is Elaine's father's occupation?
59 According to Jerry, what did Gandhi consume before
he fasted?
60 Kramer involuntarily convulses every time he hears
the voice of what celebrity?
® Mary Hart
® Dr. Ruth Westheimer
© Charo

61 George writes with which hand?

62 Mr. Seinfeld popularized what raincoat syle?
® The chesterfield
® The diplomat
© The Prince Albert
@ The executive

63 Crazy Joe Davola attends the opera dressed as what
circus character?
64 Who photographs Elaine for her Cluistmas card?

A-1223
Case 1:05-cv-08136-DC Document 1073-9
38

Filed 08/26/13 Page 19 of 39

The Seinfeld Apl i tude Te s t

65 Kramer decorates his apartment with fake-wood
wallpaper so it will resemble what structure?
® A fort
® A ski lodge
© A shed
@ A log cabin

Leve

® Russia
® China
© Tibet

73 What kil
backscratchel

66 George's accountant girlfriend wears what eating
utensil as a hair accessory?

67 What does Jerry's apartment cleaner steal from his
apartment?

74 What do
® She's a ill
® She's ad
© She's a iiI
@ She's a p~

68 Jerry and Elaine visit the Seinfelds for what occasion?
75 Who caL
69 George keeps what on his winter jacket because he
76 Accordin

thinks women find it attractive?
® The price tag
® A Dukakis pin
© A lift-ticket
@ A name tag

77 What hal
right before sl

70 To what does "They're real and they're spectacularl"

78 George u

refer?

limo ride with
® "Over the
® "Getting tI
© "If I Were
@ "The Part)

71 Why does Elaine exchange her babka for another at
the bakery?

based on wha

72 George discovers a baldness cure developed by a
doctor from what country?

79 What ing
Chinese food?

A-1224
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 20 of 39

Level 2: This, Thnl, olld the OLber <,lucsliolls

39

® Russia
® China
© Tibet

73 What kitchen implement does Kramer use as a
backscratcher?

74 What does Jerry's "virgin" girlfriend do for a living?
® She's a masseuse.
® She's a closet organizer.
© She's a lineswoman.
@ She's a performance artist.

75 Who calls George, "Georgie"?
76 According to Jerry, the whole concept of lunch is
based on what food?

77 What happens to Elaine's sixty-six-year-old boyfriend
right before she breaks up with him?

78 George unconsciously whistles what tune during a
limo ride with neo-Nazis?
® "Over the Rainbow" from The Wizard if Oz
® "Getting to Know You" from The King and I
© "If I Were a Rich Man" from Fiddler on the Roif
@ "The Party's Over" from Bells Are Ringing
79 What ingredient docs Kramer like added to his
Chinese food?

A-1225
Case 1:05-cv-08136-DC Document 1073-9
40

Filed 08/26/13 Page 21 of 39

The Seinfeld Aptitude Test

80 Who sneezes on the NBC president's lunch?

81 George, Kramer, and Elaine's macho boyfriend
embark on which of the following disastrous expeditions?
® Sky diving
® Canoeing
© Rock climbing
@ Spelunking

I

I

82 Why do Jerry and Elaine get stranded at a party on
Long Island?

83 Jerry has a dispute with a girlfriend over what men's

Level

® David Lett
® Joe Davola
© Saddam H
88 Why is G

89 To what d
90 What is t
who constantl)
® Mr. Seam"
® Mr. Neim"
© Mr. Heym

clothing commercial?

91 Jerry is

0

84 George ponders all of the following career alternatives
after losing his real-estate job except
® talk show host
® projectionist
© general manager of a baseball team
@ stunt double

85 Elaine's electronic organizer has what defect?
86 Which of the foursome prefers to be on the bottom

92 Why doei
refinished whi

93 What farr
a sauna?
® Dr. Seuss
® Norman IV
© L. Ron HI
@ Salman Rl

during sex?

94 Who repl

87 George and Kramer are late picking up Jerry and
Elaine at a bakery because their car is blocked by a
double-parker. The offender turns out to be

95 What is

I

A-1226
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 22 of 39

Level 2: This, That, and th e OLher QuesLions

41

® David Letterman
® Joe Davola
© Saddam Hussein
88 Why is George fired from his job at Elaine's office'?
89 To whaL Joes "I don't have a square to spare" refer?

90 What is the name of George's high school gym teacher
who constantly harassed him?
® Mr. Seaman
® Mr. Neiman
© Mr. Heyman

91 Jerry is obsessed with what superhero?

92 Why does George have his parents' coffee table
refinished while they're out of Lown?

93 What famous writer does Kramer thinks he meets in
a sauna?
® Dr. Scuss
® Norman Mailer
© L. Ron Hubbard
® Salman Rushdie

94 Who repeatedly shrieks, "S-t-e-I-I-aJ"?

95 What is George's customary order at the coffee shop?

A-1227
Case 1:05-cv-08136-DC Document 1073-9
42

Filed 08/26/13 Page 23 of 39

The Sei nfeLd Aptitude Test

Lev e l

96 Jerry intentionally throws away what gift from his

@ An air con

parents?

® ATV
© A bed

97 What kind of fruit does Kramer eat whole?
® A pineapple
® An orange
© An apple

INEXT QUETIONM
S
U
104 What cit

@ A banana

105 George
J

I

98 Newman has a weakness for what type of sweet treat?
99 George has a publie _ _ _ _ _ phobia?

100 Why does Jerry's model girlfriend end their
relationship?
® She thinks his comedy act isn't funny.
® She catches him picking his nose.
© She finds his table manners offensive.
@ Shc thinks she's allergic to him.
101 What does George purchase at a roadside stand

during a faile(
@ A poppyse
® A piece of
© A piece of

106 What is
York City may
107 Who pD
108 Who ha
clothing?

during his trip to the Hamptons?

102 Who said "You should have seen her face. It was
the exact same look my father gave me when I told him I
wanted to be a ventri loquist"?

109 How dit
intentionally r
110 While i
@ insider tra

103 JetTy, George, Elaine, and Kramer drive to a New
Jersey shopping mall so that Kramer can purchase what for
his apartment?

® indecent e
© mass mUT<

A-1228
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 24 of 39

Level 2: Th i s, Tho t , o nd th e Oth" ," Questio ns

43

® An air conditioner
® ATV
© A bed
NEXT QUESTION MUST FOLLOW

104 What docs Elaine get at the mall?
105 George unknowingly has what stm.:k in his teeth
during a failed job interview?
® A poppyseed
® A piece of spinach
© A piece of dental floss

106 What issue sweeps Rudolph Giuliani into the New
York City mayor's office?
107 Who paints Kramer's portrait?
108 Who has an allergic reaction to an article of Jerry's
clothing?

109 How did George's sadistic high-school gym teacher
intentionally refer to him ?

110 While in L. A. , Kramer is falsely arrested for

® insider trading
® indecent exposure
© mass murder

A-1229
Case 1:05-cv-08136-DC Document 1073-9
44

Filed 08/26/13 Page 25 of 39
Level 2

The Seinfeld Aptitude Test

111 What does George get on his shirt at a baby shower?

118 Kramer d
certain stop?

112 Susan's grandfather's dying words were
® "Remember the Alamo!"
L
LS.
® "5emper JI""deZ" I"
© "Cherish the cabin!"
@ "Live free or die!"

119 What sec
grave?
® His first se:
® His SAT sc
© His inabilit

113 Jerry has a cutout of what racy sports car on his
refrigerator?

/

120 Who pa)

114 According to Mr. Seinfeld, which impressionistic
painter was nearsighted?

love"?

115 George's breakup with his "preLentious" accountant

122 Crushed

girlfriend causes her to
® join a cult
® commit herself to a mental institution
© enter a convent
@ join the circus

leaves the net"
® Greenpeac
® the priesth
© the Peace
@ the circus

116 Who's considered a "chucker" in basketball?
117 What video does Elaine borrow from Jerry that she
returns two weeks late?
® Havana
® Caddyshack
© Rochelle, Rochelle
@ The Ten Commandments

121 Who sail

123 George
discovers it hE
124 To whit
when he reme
comes along I
® The toilet
® The mass
© The tenni

A-1230
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 26 of 39

Level 2: This, That, a nd the Olher Questions

45

118 Kramer dashes off the subway to get what snack al a
<.:erlain stop?

119 What secrct does George daim he will take to his
grave?
® His first sexual encounter
® His SAT scores
© His inability to get into podiatry school

120 Who pays for George's thcrapy sessions?
121 Who said "I ncver tasted a cough medicine I didn't
love"?

122 Crushed by Elaine's rejection, the NBC president
leaves the network and joins
® Greenpeace
® the priesthood
© the Peace Corps
@ the circus

123 George wears a trendy new suit to an interview and
discovers it has what defect?

124 To which of Jerry's girlfriends is George referring
when he remarks "A woman who hatcs me this much
comes along once in a lifetime!"?
® The toilet paper miser
® The masseuse
© The tennis lines woman

A-1231
Case 1:05-cv-08136-DC Document 1073-9
46

Filed 08/26/13 Page 27 of 39

T he S ei nfel d Ap titude Test

125 What is the name of the nun who becomes
infatuated with Kramer?
126 What morning show host appears as himself and
interviews Jerry?

I

127 How does Jerry confirm that his car has been
stolen?
® He contacts the police.
® He calls his car phone.
© He is told by Newman, an eyewitness.
128 What does George use for eyeware after his glasses
are stolen?
129 While in the Hamptons, why doesn't Jerry's
girlfriend partake in the big lobster dinner?
130 How tall is Kramer?
® 6 feet, I inch barefoot
® 6 feet, 2112 inches (minus his hair)
© Exactly 6 feet, 4 inches

1 Chicken sal
2 Pretzels
3 Mini-Ritz c
4 Creamed cc
5 Roasted pol
6 Gyros
7 Kishke
8 A tomato
9 Babka
10 Lobster

a Kramer feel
II Mrs. Costal
C

d
e
f
9

h
i

Jerry, Elain
subway
Hurled at (
Elaine's ha~
The exact 0
Kramer use
These mak!
Jerry uses I
George urgl

A-1232
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 28 of 39

EDIBLES
MATCH THE FOLLOWING FOODS WITH THE
CORRESPONDING DESCRIPTIONS.

1 Chicken salad
2 Pretzels
3 Mini-Ritz crackers
4 Creamed corn
5 Roasted potatoes
6 Gyros
7 Kishke
8 A tomato
9 Babka
10 Lobster

~

b
c
d
e
f
9

h

Kramer feels as loose as this after a massage
Mrs. Costama prepares this on special occasions
Jerry, Elaine, and Kramer share this craving on the
subway
Hurled at George by one of Jerry's girlfriends
Elaine's has a hair on it
The exact opposite of what George regularly orders
Kramer uses this as bird food
These make Kramer "thirsty"
Jerry uses this as a peace offering
George urges his date to "go for it"

47

A-1233
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 29 of 39

OM, BOY!

IMATCH EACH NICKNAME WITH THE APPROPRIATE "BOY," I

I

, Bubble Boy
2 Butcher Boy
3 Aqua Boy
4 Cable Boy
5 Pretty Boy
6 Golden Boy
7 Fly Boy
8 Triangle Boy

MATCH THE
APPROPRIA
HAVE

,
2
3

4
5
6
7
8

Would like to
Wears PABA-I
Observes com
Almost attend
Nicknamed th
Has a weakne
Believes homf
Is a bathroom

a Jerry
b George
C Keith Hernande;>;

d Elaine's artist ex-boyfriend
e Obnoxious plastic-tent dweller
f Jerry's favorite old T-shirt

C Elaine

d Kramer

e

9 The mohel

h

a Jerry
b George

Elaine's sweaty exercise companion

48

Newman

A-1234
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 30 of 39

POTPOURRI
MATCH THE FOLLOWING TRADEMARKS WITH THE
APPROPRIATE CHARACTERS. SOME CHARACTERS
HAVE MORE THAN ONE TRADEMARK.

1 Would like to have "shoehorn hand,,"
2 Wears PABA-free sunblock
3 Observes coma etiquette
4 Almost attended barber school
5 Nicknamed the "little bulldog" in college
6 Has a weakness for Jujyfruits
7 Believes home package delivery should be prohibited
8 Is a bathroom stall man

a Jerry
b George
c Elaine
d Kramer

e Newman

49

A-1235
Case 1:05-cv-08136-DC Document 1073-9

r

Filed 08/26/13 Page 31 of 39

ANSWER KEY

LEVEL 1
1 c
2 A Pez dispenser

3b
4 As a ball boy
5 e (According to Jerry, it's a "potpourri" of all these
odors.)
6 He offers her fifty dollars to go over to a stranger's
table and take a bite out of an egg roll.
7 Somewhere in Florida
8 c
9 The subway

E

10 b
11 Junior Mints
12 a
13 His wife
14 Cereal hoxes
15 c

16 He decides to go against his instincts and do the
complete opposite of what he would normally do.

17 c
18 Refraining from masturbating
19 Kramer (after watching a nude woman in the
apartment across the street)
107

,

A-1236
Case 1:05-cv-08136-DC Document 1073-9
1>12

The Seinfeld Aplitude Test

Family Trees
1 f
2 c
3i
4d

5

J

I

a
6h
7e
8 g
9 j

10 b

New York, New York No. 1
1 f
2d

3i
4 g

5

Filed 08/26/13 Page 32 of 39

a

6j
7c
8 b
9 e
10 h

LEVEL 2
1 c
2 It's never he en mentioned.

3 The I
4h
5 Dolor

6
7
8
9

h
h
h
She s
har.
10 His Ii
11 h
12 Jerry'l

13 a
14 NeWIll

IS Marla
16
17
18
19
20
21

He w(
Georg.

h
An 01
a

He ha
her thl
22 h
23 She's c
24 His lel

25
26
27
28
29
30

a

He wa
WorkiJ
c
Rochel,
Krame

A-1237
Case 1:05-cv-08136-DC Document 1073-9
Answer Key

Filed 08/26/13 Page 33 of 39
113

3 The best man

4b
5 Dolores
6b

7b
8 b
9 She sleeps on a Hide-A-Bed that has a protruding
bar.
10 His line of underwear

11
12
13
14
15

b
lerry's
a
Newman
Marla, the "virgin"
He works for the New York City Parks Department.
George
b

16
17
18
19 An Orioles baseball cap that she refuses to remove

20 a
21 He has Elaine take it for him (by passing it out to
her through his girlfriend's bedroom window).
22 b
23 She's a waitress-actress
24 His left wrist
25 a
26 He was a real-estate broker.
27 Working as a proofreader
28 c

29 Rochelle, Rochelle
30 Kramer

A-1238
Case 1:05-cv-08136-DC Document 1073-9
114

31
32
33
34
35
36

I
I

Filed 08/26/13 Page 34 of 39

The Seinfeld Aptitude Test

A pink, candy-striped lining
a and d
The Dream Cafe
The beach
c

Elaine tries to slip the maitre d' a twenty-dollar
bribe.
37 b

385B
39 He buys it back from Uncle Leo.

40
41
42
43

a
Her nipple is exposed.
a
Golf
44 His father grounds him.

45
46
47
48
49
50
51
52
53
54
55
56
57
58
59

b
Cable TV installers
c

They are moth-ridden.
a
He faints.
Because Jerry revokes his key privileges
b
She accidentally bumps into her in the sauna.
He is pushed into a hot iron and burns his hands.
a
Jerry
d
He's a famous writer.
Triscuits

60 a
61 He
62
63
64
65
66
67

d
Acl

KraJ
bar:
ChOI

A st
68 Mr.:
outg(

69
70
71
72
73
74
75
76

c

The
It ha
b
Asp.
b
Georl

Tuna
77 He 81

78
79
80
81
82

C

Extra
Elain
c

Georg
drives
83 Levi's
84 d
85 An at

86 Kram,
87 c

A-1239
Case 1:05-cv-08136-DC Document 1073-9

Filed 08/26/13 Page 35 of 39

Answer Key

115

60 a
61 He is a lefty.

62 d
63 A clown
64 Kramer

65 band d
66 Chopsticks

67 A statue
68 Mr. Seinfeld is being honored at a dinner as the
outgoing president of the condo association.

69 c
70 The authenticity of Jerry's girlfriend's breasts
71 It has a hair on it.

72 b
73
74
75
76
77
78

A spatula

b
George's mother
Tuna
He suffers a stroke.
c
Extra MSG
Elaine
c

79
80
81
82 George gets lucky with a woman from his office and
drives home with her.

83 Levi's cotton Dockers
84 d
85 An alarm that doesn't shut off

86 Kramer
87 c

A-1240
Case 1:05-cv-08136-DC Document 1073-9
116

88
89
90
91
92

I

I

93
94

95
96
97
98
99
100
101
102

Filed 08/26/13 Page 36 of 39

The Seinfeld Aptitude Te s t

He had sex on his desk with the cleaning lady.
Toilet paper
c
Superman
Jerry carelessly leaves his mug on the table, which
makes a ring.
d
Elaine
Tuna on toast
A watch
c
Drake's Coffee Cake
Bathroom
b
Tomatoes
George (describing his girlfriend's reaction to his
confession that he cheated on the IQ test she
administered)

103 a
104 Two goldfish

105 b
106 His campaign pledge to investigate the nonfat yogurt
scandal
Jerry's artist-girlfriend, Nina
His accountant
"Can't-stand-ya"
c (He is mistaken for a serial killer known as the
"Smog Strangler.")
111 Chocolate cake
112 c

107
108
109
110

113
114
115
116
117
118

119
120
121
122

A Pm
Mone
b
Geor~
a

A gyr

b
His rr
Georg
a

123 The fl
swoosl
124 b
125 Sister
126 Bryan
127 b
128 Presel
129 She k(
130 b

Edibles
1 f
2 h
3g
4a
5 b
6c
7i
8d

A-1241
Case 1:05-cv-08136-DC Document 1073-9
Answer Key

Filed 08/26/13 Page 37 of 39
117

113 A Porsche
114 Monet
115 b
116 George

117 a
118 A gyro sandwich

119 b
120
121
122
123

His mother
George (to his date)
a
The fabric rubs between his thighs and produces a
swoosh like sound

124
125
126
127
128
129
130

b
Sister Roberta
Bryant Gumbel
b
Prescription swimming goggles
She keeps kosher.

Edibles
1 f

2 h

b

A-1242
Case 1:05-cv-08136-DC Document 1073-9
118

Filed 08/26/13 Page 38 of 39

The Seinfeld Aptitude Test

9 e

10 j

Oh, Boy!
1 e
2 g
3 b

I

4 a
5 c
6 f

8 d

Potpourri

1 d
b

15
16
17
18
19

b

20

7 h (Jerry dubs him this because he's a pilot.)

2
3
4
5

5 c
6 Monl
7 a
8 c
9 "Statl
10 That
11 c
12 Estell
13 For h(
14 d

Kram!

Kram.

John

f

a

Voluni

21 The h

a

table.

e

22 c
23 Baked

b
6 c

24 The p(
25 c

7 d
8 b

26 So he,

LEVEL 3

1 b
2 In a parking garage
3 c
4 Jerry (expressing his reluctance to have dinner with
Elaine's intellectually intimidating father)

whilel

27 a
28 A golf
29 The "1
30 "Tippy
31 c
32 SA
33 David 1

A-1243
$8.9.s u.s. ($11.9;; ClIlada)
Case 1:05-cv-08136-DC Document 1073-9

WHAT'S YOUR

i

~(\ j 'l

Filed 08/26/13 Page 39 of 39

r( \I(

IQ?

Just how well do you c'ommand tlw huzzwords. Iw("r'adillrws, Iwlly
a nllOyances. and trillill~ly c·olllpl .. x c>sca pades of JelTY St'i nfelrL Elaine
B .. nes, George Costa n za. and Knllller- t he fahlllolJ"ly Ileurotic
foursollw thatmuk .. " tilt' oHlwat hit TV "eri .." Seil!feld lic·k·~
What artic·lt, of clothillg does ./erry IIlake fmllou,", IJn tilt' Todl/Y ShlJu:"~
Where dcws Ceorge IIlt'd a IVClIlILlIl whIJ halldr'u/f" him 10 a lwei aile!

"lPal" his dotlw,,'~
\'fhal kine! orrrllit dot'" Knlllwreat I\'holt"~

®
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A I'ilwapple

All orall",e
AIl1lppll'

@ A IIlJll<llla

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

ACl"lmling to Elail ~.
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>

w sealt,d ill rt'stalll"llllts hased

~[!]~
1<1 n~ally ktoep tnwk of Seill/eld
minlltiat'-r'hallt'ngt' -.,ja;~-'V'V.J-'s£~ r friends wilh thest' .s50 trivia
qllt'stions and ] 0 extra mat l"lJlng qUIZU'S. No. The Seinjdrl A1J/ilUlie
Test ("an't It'll you wlwtlwr yo u're Master of YOUT Domain, but it will
If you thi n k you kllr)"

[!]

certify your status as King or Quef'1I of Sein/eld trivia. So twist Opl:'l1 <I
Snapp l e. douhl .. -dip a (' h ip, a n d open this book to satisfy your
h elw .... n-.. pisOl lt' cravings,

ISBN 0-8065-1583-X

Thi:t'lllil j

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1
1iL!-

nu l 111-°""'11 il1'l'ro,,·d III

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A Cit:'HI,,1 I']"("s, Bouk

Caro l I'ubli,hi ll l-( Croup

Answers:

.)"",-ti·lrI.

A-1244
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 1 of 27

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,

:
:
:
:
:
Plaintiffs,
:
:
v.
:
:
Google Inc.,
:
:
Defendant.
:
:
:
------------------------------------- x

Case No. 05 CV 8136-DC

EXHIBIT

6

TO THE DECLARATION OF MICHAEL J. BONI IN SUPPORT OF PLAINTIFFS’
OPPOSITION TO DEFENDANT GOOGLE’S MOTION FOR SUMMARY JUDGMENT

A-1245
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 2 of 27

WELCOME TO

TWN

EAKS

A Complete Guide to
Who'. Who & What'. What

A-1246
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 3 of 27

WELCOME TO

TWIN
PEAKS
A Complete Guide to
Who's Who & What's What

A

Dctb

BOOK BY SCOTT KNICKELBINE

1his publication is not licensed by, nor is Publications
International, Ltd., affiliated with, Lynch/Frost Productions,
Inc., Prop3l(anda Films, WOrldvision Enterprises, Inc., or Capital
Cities/ABC, Inc. Television Network Group.

A-1247
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 4 of 27

All rights reserved under International and Pan American
copyright conventions. Copyright C 1990 Publications
International, Ltd. This publication may not be reproduced Or
quoted in whole or in part by mimeograph or any other printed
or electronic means, Or for presentation on radio, television,
videotape, or film without written pennission from Louis
Weber, C.E.O. of Publications International, Ltd., 7373 N.
Cicero Ave., Lincolnwood, Illinois 60646. Pennission is never
granted for commercial pUlpOseS. Printed in U.S.A.
This publication is not licensed by, nor is Publications
[ntemational, Ltd., affiliated with, Lynch/Frost Productions,
Inc., Propaganoo Films, Worldvislon Encerprises, Inc., or Capital
Oties/ABC, Inc. Television Network Group.
Twin Peaks copyright MCMLXXXIX by Lynch/Frost
Productions Inc. All rights reserved. The video Twin Peaks is
licensed by Warner Home Video (U.K.) Limited. Floating into
the Night copyright 1989 by Warner Bros. Records Inc., a
Warner Communications Company.
photo Credits:
ill 1990 Capital Cities/ABC, Inc.: 11, 15, 19,21,24,28,58,62;
Onema Collectors: 22, 34, 36: De Laurentiis Entertainment
Group Inc.: 105; C 1990 Entertainment Weekly Inc.: 8; Steve
Granitz/Retna Ltd.: 31; Michael Grecco/Outline Press: 32;
W-lrd Keller/Wlrld Class PhotohistoIY 114, 119; ill 1990 Karen
Kuehn/Matrix: 121; David Lynch/@ 1989 Warner Bros.
Records: 125; ill 1990 Dewey Nicks/Visages: 17; f'fank W
Ockenfels/Outline Press; 14; Photofest; 25, 40; The Sllmue1
Goldwyn Company 0 1990 PolyGram Filmproduktion GmbH;
106; Siede Preis Photography: 45, 54, 80; (:) 1990 Craig Sjodin/
Capital Cities/ABC, Inc.; 27; US Magazine e 1990 Straight
Arrow Publishers Inc.; 8; Barry ThIesnick/Retna Ltd.; 88;
C> 1984 Universal Oty Studios, Inc. and Dino De Laurentiis
Corporation: tOl; ill 1990 Warner Bros., Inc.: 12; ill 1990
'w.irner Home Video; 86.
Front Cover; Siede Preis Photography; ill 1989 LeIgh A.
Rohr. Other photography by Sam Griffith Studio Inc.

A-1248
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 5 of 27

CONfEm

CHAPTER ONE

AMERICA'S CRAZIEST MYSTERY. . . . . . ..

4

CHAPTER1WO

JUST PlAIN FOLKS ................ B
CHAPTER TIIREE
"IT'S LIKE A BEAutIFUL
DREAM•••AND THE
MOST TERRIBLE
NlGID'MAIlE" . . . . . . . . . . . . . . . . .. 35
CHAPTER FOUR
mE MAN WHO DREAMED UP
TWIN PEAKS . . . . . . . . . . . . . . . . . .. 87
CHAPTER FIVE
BEHIND THE CAMERA
AT TWIN PEAKS ........... . .. . .. 112
CHAPTER SIX
''THERE'S ALWAYS MUSIC
IN mE AIR" .... . ....... ....... 120
CHAPTER SEVEN
HOT BlACK COFFEE
AND CHERRY pm ... . .. ......... 126

A-1249
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 6 of 27

CHAPTER ONE

AMERICA'S CRAZIEST
MYSTERY

.. U it took was one dead body. One corpse

n. of a homecoming queen, wrapped in plastic

and wound in white tape. Its discovery set off
an investigation that would slowly, slowly begin
to unravel a hundred other mysteries in the
little town, a place where everybody seemed
so wholesome and decent, but where, in reality,
everybody had at least one dirty little secret.
And it took just one corpse in plastic to
change the face of television - possibly forever.
The corpse was, of course, the blue and
beautiful body of Laura Palmer, and the television show is Twin Peaks - the collaboration
of David Lynch, one of America's strangest and
most critically acclaimed film directors, and
Mark Frost, a veteran writer of some of television's most successful shows. Twin Peaks had
. viewers racing home to catch each episode,

4

A-1250
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 7 of 27

network execs tearing up their fall scheduling
plans, and Clitics revising their preconceived
notions about what's possible on 1V
Most of the television in-group gave Twin
Peaks about as much chance of survival as a log
in a lumberyard. To their chagrin, and to
everybody's surprise, the loopy, brooding, and
surrealistic soap proved a solid hit with the
public. The show topped all shows in the Emmy
nominations with 14, beating out such smallscreen powerhouses as L.A. Law, Cheers, and
Murphy Brown. Lynch was nominated for
producing, directing, writing, creating song
lyrics, and composing the series' main title
theme music with Angelo Badalamenti. Twin
Peaks itselfwas nominated as best drama series,
Kyle Maclachlan for best lead actor, Piper Laurie
for best lead actress, Sherilyn Ferlll for best
supporting actress. "I thlnkit'sfantastic," Lynch
told the Los Angeies Times. ''I'm going right out
to buy a new chain saw and a dozen doughnuts."
The show was also a wiMer in the ratings
game. The April 8, 1990, premiere of Twin
Peaks got a Nielsen rating of 21.7 and a 33
share, meaning that 33 percent of all those
watching television at that time were watching
Twin Peaks. It ranked number five for the week.
The first season's cliff-hanger finale won its
time period in the overnight Nielsen ratings.
Robert Iger, president of ABC Entertainment, has said that the survival of the

5

A-1251
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 8 of 27

show was never in jeopardy once it stood up
respectably to its Thursday night competition,
but that many at the network thought the show
would fail and fail quickly. But Iger was willing
to take a chance: "Once we stop experimenting,"
he told the Los Angeles Times, "once we stop
trying to create new viewing experiences, then
it's over. Then we're dead."
Originally scoffers, the other networks
have taken notice of the phenomenal success
of Twin Peaks. The presidents of NBC and
CBS have both made announcements on
programming plans that have widely been
interpreted in the industry as allusions to the
creative originality of TwinPeaks.
Although some of the most important
episodes in the first season topped the ratings,
the show's survival was in doubt as much of the
original audience seemed to slip away. But
history suggests that heavy Emmy recognition
can stoke a show's ratings, especially a show
that needs to "find an audience." One of Mark
Frost's previous projects, Hill Street Blues, for
example, had poor ratings when it first hit the
air, but after snagging 21 nominations and
virtually sweeping the major awards in 1981,
viewership began to grow. It eventually became
a ratings success. "I think you can draw a direct
comparison to Hill Street," Ted Harbert, ABC's
executive vice president for prime time, told
the Los Angeles Times. "There was a show that

6

A-1252
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 9 of 27

CHAPTER TWO

JUST PLAIN FOLKS

Special Agent Dale Cooper
rguably the best thing about Twin Peaks,

A Agent Cooper is a straight-arrow FBI agent

with a playful, boyish nature and near-psychic
deductive powers. Actor Kyle Maclachlan, who
plays Cooper, says that Cooper's personality
quirks are a combination of traits from David
Lynch and Mark Frost. As Michael Sragow
has written of Cooper in American Film,
"Maclachlan puts together combinations of
naivete and authority that would stagger and
defeat lesser actors. He catalogues the banal
aspects of his mission, like what he eats for
lunch on the road (tuna on wheat, slice of
cherry pie and coffee), as if the recitation calms
him, like a supermundane mantra."
Kyle Maclachlan's career has been tied to
Lynch's own. He appeared in Lynch's ill-fated
motion picture Dune as the messiahlike Paul

13

A-1253
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 10 of 27

Atreides, and he made a big impression on
critics in Blue Thlvet as Jeffrey Beaumont, the
all-American boy with a perverted twist. He has
appeared in other films as well. MacLachlan
made The Hidden in 1987 with director Jack
Sholden, in which he plays an FBI agent who's
actually a space alien. Is it just coincidence that
Special Agent Cooper also seems to be (as
critic and Peaks fr ak John Leonard puts it)
"receiving messages from outer space through
fillings in his teeth"?
Maclachlan has been nominated for an
Emmy for his role in Twin Peaks, and he will
also appear in Oliver Stone's soon-to-be-released
epic on The Doors.

Left: Kyle MacUlchlan, who
has appeared in several of
Lynch's films, plays the
seemingly clairvoyant Agent
Cooper. Opposite: In TWin
Peaks, Sheriff Truman
(Michael Ontkean) is
secretly seeingJosie Packard
OoanChen).

14

A-1254
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 11 of 27

Sheriff Harry S. Truman
Sheriff Truman is a down-to-earth cop who
simply can't fathom Cooper's loopy investigative
style. Until the evidence can no longer be
denied, he can't believe Cooper's intimations
about the dastardly goings-on in Twin Peaks.
But he doesn't mind taking a backseat to the
brainy FBI agent. '1 think I'd better start studying
medicine," he tells Cooper, "because I'm
beginning to feel like Dr. Watson." Truman is
carrying on an affair with Jocelyn Packard,
which may prove to be an embarrassment ifher
secret dealings with Hank Jennings (Norma's
husband) ever come to light.

15

A-1255
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 12 of 27

CHAPTER THREE

"IT'S LIKE ABEAUTD1JL
DREAM ...AND 11IE
MOST TERRIBLE
NIGHTMARE"
Episode One
two-hour
T his theLynch. series pilot was directed by
David
In
bucolic Northwest lumber town of
1Win Peaks, Pete Martell discovers a body on
the riverfront outside the Packard Mill. He calls
Sheriff Truman... "She's dead, wrapped in
plastic," he sputters. Truman, Deputy Andy, and
Doc Hayward go to inspect the body; whid1
they discover to be that of laura Palmer - the
most popular girl in town. TIle body is wrapped
in plastic sheeting and wound in white tape.

35

A-1256
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 13 of 27

1Win Peaks begins with the
discovery of Laura Palmer's
body wrapped in plastic.

Meanwhile, Mrs. Palmer calls frantically
around town, trying to find the missing Laura.
Her husband, Leland, is at the Great Northern
Hotel with Benjamin Horne making a sales pitch
for "Ghostwood Country Club and Estates"
to a group of Norwegians. It becomes apparent
that Horne hasn't yet acquired the land for
the development. Leland is called out of the
presentation to answer a phone call from his
wife. At that moment, Truman drives up to
inform Leland of his daughter's death. This
scene - with the Sheriff wordlessly conveying
the tragic news, and an extended shot of the
dropped telephone receiver, over which we
hear Mrs. Palmer screaming - is one of the most
powerful in the series. It's also unusual for a
television whodunit. U~'Ually; the discovery of
a corpse is simply the event that gets the
investigation underway; here, it is treated

36

A-1257
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 14 of 27

sensitively; like something happening to real
human beings.
Next we are introduced to the Double R
Diner and its owner, Norma Jennings. Bobby
Briggs, Laura's boyfri end, is there and offers
ShellyJohnson, the waitress, a ride home. Bobby
and Shelly are having a secret affair. Shelly
assures Bobby that her husband, Leo, is not
at home - he called her from Butte, Montana,
at midnight and couldn't possibly be back yet.
But as Bobby drives toward Shelly's house, Leo's
truck- an ominous, powerful-looking truckis in front of the house.
At the high school, Donna Hayward and
James Hurley; two of Laura's closest friends, are
shocked at the announcement of Laura's death.
Bobby is called in for questioning and denies
killing Laura. The school principal makes a
tearful announcement over the intercom
system, and tbe camera slowly moves in to a
portrait of L1ura in the Sdlool's trophy case.
The d ear implication is that the town bas lost
one of its finest young girls, someone that
everyone loved. But we learn later that there is
more than one side to Laura Palmer.
Under sedation, Mrs. Palmer tells dIe police
that she last saw Laura go into her room at 9:00
the previous evening, where she apparently
received one phone call. In Laura's bedroom,
the police find her diary; which is locked, and a
video camera. Word comes that Mr. Pulaski,

37

A-1258
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 15 of 27

CHAPTER FOUR

THE MAN WHO

DREAMED UP
TWIN PEAKS
avid Lynch's entire biography in the
Wild at Heart,
for his most
D kit"Eagle Scout,recent film,Montana."press
reads:
Missoula,
But
there's much more to the life of this quirky,
brilliant, creative mastermind. BomJanuary 20,
1946, in Missoula, Montana, Lynch was the
son of a rese'dfch scientist for the USDA who
was transferred frequently. Lynch's childhood
was spent first in Boise, Idaho, and Spokane,
Washington - the same woodsy, bucolic settings
that would reappear in Blue Velvet and, of
course, Twin Peaks. Then his faniily moved
to the South: Durham, North Carolina, and
Alexandria, Virginia, where he attended high
school.
Growing up, David Lynch had an almost
blissfully happy childhood - something you

87

A-1259
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 16 of 27

would never expect from the tortured visions
of childhood and parenthood that appear in
every one of his films. But the sensitive boy did
begin to realize that there was a darker reality
behind the bland surroundings he grew up in.
"Every once in a while, I would go to New York
City to visit my grandparents and it would really
freak me out," Lynch recalled to Blitz magazine.
"I would see things in the subway. I think I
started feeling fear. . .there was real fear of
the unknown."
"You know little by little, just by studying
science, that certain things are hidden - there
are things you can't see," Lynch said in aRolling
Stone interview. '~d your mind can begin to
create many things to worry about. And then
once you're exposed to fearful things, and
you see that really and truly many; many; many
things are wrong - and so many people are
participating in strange and horrible things you begin to worry that the peaceful, happy life
could vanish or be threatened."
Lynch was indeed an Eagle Scout as a
youth - he was even given the honor of seating
VIPs at the inauguration of President John F.
Kennedy. That's something to keep in mind
when Agent Cooper worries aloud about "who
pulled the trigger on JFK."
At first, Lynch was interested in being a
painter, and he started attending weekend
classes at the Corcoran School of Art in

88

A-1260
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 17 of 27

Washington, D.C., with buddy Jack Fisk. After
high school, both of them went to Boston
Museum School. Lynch stayed a year, but he felt
his fellow students weren't serious enough. He
and Jack Fisk went to Europe in 1965. They
planned to go for three years, but wound up
staying only 15 days. "The mood wasn't right
for me," Lynch told writers]. Hoberman and
Jonathan Rosenbaum.
In late 1965, Lynch moved to Philadelphia
to attend the Philadelphia Academy of Fine Art.
Eventually, after marrying his first wife, Peggy,
he bought a 12-room house in a deserted
industrial area across the street from a morgue.
Philadelphia was a terrifying experience for
Lynch. "There was racial tension and just. . .
violence and fear," he told writer Gary Indiana
in a 1978 interview Later, in the midst of
publicity for his first commercially successful
mm, The Elephant Man, Lynch would recall to
reporter Henry Bromell, "There was violence
and hate and mth. A little girl pleading with her
father to come home, and he's sitting on the
curb. Guys ripping another guy out of a car
while it's still moving. All kinds of scenes. It
wasn't those things that did it, though. It was
what they did when they sank inside of me.
Eraserhead came out of that."
According to Newsweek, Lynch was fascinated by the body bags hanging outside the
neighboring morgue. "The bags had a big zipper,

89

A-1261
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 18 of 27

CHAPTER FIVE

BEHIND TIlE CAMERA
AT TWIN PEAKS
Mark Frost - The Other Guy
at Twin Peaks

Mark Frost, the Hill !-reet Blues veteran and
one haU' of Lynch / Frost Produc tions,
brings

just as mudl of his per onal background
to the series as Lyndl do s. As a child, Fro t
spent his summe rs at hi family's vacation
home, located in Taborton in upstate New York.
There, he became fasdnated with the town's
secrets, which indude d hidden affairs, political
intrigu es, and tori s about the ghosts of
murder ed girl haunting the forests. "But it
was all so hard to pin down because they were
always just things that you would bear, and you
never, never asked question ," Frost recalled to
the Los Angeles Times.

112

A-1262
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 19 of 27

Frost came to Hollywood in 1976, where
he joined Steven Bochco on the writing staff of
the Six Million Dollar Man. He left that show
after a year to work as a PBS documentary
producer and to write plays for the Guthrie
Theater in Minneapolis. It was several years
before he returned to L.A, once again at the
invitation of Steven Bochco, to write for Hill
Street Blues.
When Hill Street was finally taken off the
air, after six years, Frost wrote the screenplay
for the film The Believers, directed by John
Schlesinger. He teamed up with David Lynch in
1986. The duo wrote two feature screenplays,
entitled Goddess and One Saliva Bubble,
neither of which attracted studio backing. 7Win
Peaks was the first conunercial success for what
came to be called Lynch/Frost Productions.
"The germ of Twin Peaks," Frost told the
Seattle Uf?ek~ "came out of David and I just
talking about a town, a city in the Northwest
full of mysteries, secret relationships, a sort of
film noir undertone...That led to the idea
of starting with the discovery of a body, a
mysterious crime that would get the show off
the ground, serve as a spinal column for the
series. That in turn led us to topography, a map
of the town, and that gave way to a history of
the town that ended up going back over 100
years. And that suggested what kind of people
lived there now and their interrelations, the

113

A-1263
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 20 of 27

Much of the imaginary town of Twin Peaks is really in
Snoqualmie, Washington. Here is the railroad bridge
Ronette walked across.

way their pasts are connected, with the town's
and each other's.."
"One of the reasons our partnership is
relatively free of contention is that we have a
shared perception about what the world is,
what reality is, what life is," Frost told The New
lbrk Times. "There is a design behind the world
that we are living in, which is veiled to most of
us most of the time, but every once in a while
you catch a glimpse of it. To David Lynch, any
film or television show should be life casting
a shadow."
The production firm that participates
in Twin Peaks, Propaganda Films, is one

114

A-1264
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 21 of 27

CHAPTER SIX

"THERE'S ALWAYS
MUSIC IN TIlE AIR"

"I as she listens to some ethereal, tells Donna
love this music," Audrey Horne
jazzy piece
emanating from the jukebox at the Double R
Diner. "Isn't it too dreamy?"
Dreamy is the word for it, all right. In Twin
Peaks, as in most of David Lynch's films, music
is so important that it's almost a character in
itself. The series sound track, which at times
sounds like a soap-opera score on Percodan
and at other times sounds more like bebop
from Venus, crests at odd times in the series - at
the discovery of Laura Palmer's corpse, for
instance. Throughout the series, the recurring
themes are effectively used to underscore
emotional impact, reinforcing Lynch's vision of
romance and evil.
The musical genius behind Twin Peaks
is Angelo Badalamenti, an award-winning

120

A-1265
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 22 of 27

composer who also collaborated with Lynch
on the scores for Blue Velvet, Wild at Heart,
and Industrial Symphony No.1, a multimedia
piece that premiered on stage in November
1989 and was released on video in the fall of
1990. Badalamenti has also written the scores
for Cousins, Tough Guys Don't Dance, lfflit
Until spring, and National Lampoon's Christmas vacation.

Angelo Badalamenti, the creator of the eerie, hypnotiC
'/Win Peaks music, has collaborated with Lynch on
other projects.

121

A-1266
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 23 of 27

In addition, Badalamenti has written scores
for commercials, including David Lynch's ads
for Obsession perfume. He has occasionally
turned his hand to arranging, producing out
pieces for such pop groups as the Pet Shop Boys.
Angelo Badalamenti worked with Lynch in
the fall of 1989 to create the romantic, ominous
music for Twin Peaks. After 20 minutes, he told
Entertainment Weekl~ he had produced the
signature theme for the series, which he calls
the "Love Theme." "You just wrote 75 percent
of the score," Lynch told him excitedly. "It's the
mood of the whole piece. It is 'IWin Peaks."
"David and I read each other very well in
the creative world," Badalamenti said in the
interview. "We can tune in to each other."
According to Badalamenti, Lynch describes the
mood he wants to create. Then the composer
begins to improvise on one of the banks of
electronic keyboards at his Manhattan studio.
Lynch makes suggestions to fine-tune the piece,
and the composition proceeds from there.
Julee Cruise performs the vocals for the
two Lynch/Badalamenti compositions featured
in Twin Peaks, "The Nightingale" and "Falling."
She also appears as the lead singer of the group
that's performing at the Road House just before
the big fight breaks out. A native of Iowa, Cruise
has been performing professionally from the
age of 11 . In Minneapolis, she performed at the
Guthrie Theater and was a resident actress at

122

A-1267
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 24 of 27

CHAPTER SEVEN

HOT BLACK COFFEE
AND CHERRY PIE
Logjam - The Twin Peaks Quiz
right,
put
your thinking
Allcaps andeverybody - quiz on see your ears,
stuff wads of cotton in
to
how well
because here's a little
you know Twin Peaks trivia. Some of the
answers to these questions you can get just
from having read this book. Others - and you
Peaks freaks will know which ones they are can be deduced only from watching the series.
And some answers are revealed only in dreams
and visions. ..
1. As Leland Palmer moans, "We've got to
dance for Laura," what song is playing on
the record player?
2. Who actually made the pot of coffee that
Pete finds the fish in?

126

A-1268
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 25 of 27

3. What is Agent Cooper's room number at
the Great Northern?
4. What's the name of Leo Johnson's truck?
5. What, according to Agent Cooper, is the
true test of any hotel?
6. What does Agent Cooper whittle during
the stakeout at the Road House?
7. What restaurant does Cooper recommend
when you're driving to Twin Peaks?
8. What lines the interior walls of Leo
Johnson's house?
9. What's the name of the most popular
television show in Twin Peaks?
10. What's the name of the park where
Dr. Jacoby sees Madeleine disguised as
Laura Palmer?
11. In addition to her diary, what piece of
evidence found in Laura Palmer's bedroom
does Cooper inspect in the first episode?
12. Cooper's and Ed's code names at One-Eyed
Jack's are strangely reminiscent of the
names of the stars of another famous
television program. Which one?
13. What does Jerry say when Ben tells him
the Norwegians have left?
14. Ben suspects the Icelanders are sniffing
nitrous oxide. In what David Lynch film
does nitrous oxide playa prominent role?
15. What did the one-armed man sell before
he sold shoes?
Answers on page 128.

127

A-1269
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 26 of 27

The Wit and Wudom of Agent Cooper
"Two things that continue to trouble me and I'm speaking here not only as an agent of
the Bureau but also as a human being. What
really went on between Marilyn Monroe and
the Kennedys. . .and who pulled the trigger
onJFK?"
". want two eggs, fried hard .• know, it's
hard on the arteries ...just about as hard as •
want those eggs."
"1Wenty-four-hour room service must be
one of the premier achievements of modern
civilization. "
''I'm a strong sender."
"In the heat of an investigative pursuit, the
shortest distance between two points is not
necessarily a straight line."
''I'm gonna let you in on a little secret.
Every day, once a day, give yourself a present.
Don't plan it, don't wait for it, just let it happen.
It could be a new shirt at the men's store, a
catnap in your office chair...or two cups of
good, hot, black coffee."
ANSWERS: 1. Pennsylvania 6·5000. 2. Josie Packard.
3. Room 315. He dictates it on his tape to Diane.
4. "Big Pussycat." It's shown in Episode Two. 5. "That
morning cup of coffee." 6. A wooden whistle. 7. The
Lamplighter Inn. 8. Plastic sheeting. 9. Invitation to
Love. 10. Easter Park (get it? Easter? As in rising from
the dead?). 11. A box of chocolate bunnies. 12. Tbe
Fiintstones. l3. '~ had those Vikings by the horns!"
14. Blue velvet. 15. Pharmaceuticals.

128

A-1270
Case 1:05-cv-08136-DC Document 1073-10

Filed 08/26/13 Page 27 of 27

WELCOME TO

TWIN
PEAKS
A Complete Guide to
Who's Who & What's What

Get in on all the action of TV's hottest, wildest show!
WELCOME TO 1WIN PEAKS: A COMPLETE
GUIDE TO WHO'S WHO AND WHAT'S WHAT
is for everyone who is captivated with the show's
audacious blend of murder, romance, and humor.
The entertaining, fact-filled text gives you a complete
first-season episode guide along with illuminating
descriptions of the characters. Dozens of photographs, a behind-the-scenes look at the creators and
cast of the series, and critical interpretations that
will contribute to your enjoyment of the show are
all included.

This pUblication is not licensed by, nor is Publications
International, Ltd., affiliated with, Lynch/Frost Productions,
Inc., Propaganda Films, Worldvision Enterprises, Inc., or
Capital Cities/ABC, Inc. Television Network Group.

o

6

ISBN 0-451-17031-8

•

A-1271
Case 1:05-cv-08136-DC Document 1073-11

Filed 08/26/13 Page 1 of 1

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,

:
:
:
:
:
Plaintiffs,
:
:
v.
:
:
Google Inc.,
:
:
Defendant.
:
:
:
------------------------------------- x

Case No. 05 CV 8136-DC

EXHIBIT

7

TO THE DECLARATION OF MICHAEL J. BONI IN SUPPORT OF PLAINTIFFS’
OPPOSITION TO DEFENDANT GOOGLE’S MOTION FOR SUMMARY JUDGMENT

[FILED UNDER SEAL]

A-1272
Case 1:05-cv-08136-DC Document 1073-12

Filed 08/26/13 Page 1 of 5

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,

:
:
:
:
:
Plaintiffs,
:
:
v.
:
:
Google Inc.,
:
:
Defendant.
:
:
:
------------------------------------- x

Case No. 05 CV 8136-DC

EXHIBIT

8

TO THE DECLARATION OF MICHAEL J. BONI IN SUPPORT OF PLAINTIFFS’
OPPOSITION TO DEFENDANT GOOGLE’S MOTION FOR SUMMARY JUDGMENT

A-1273
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A-1277
Case 1:05-cv-08136-DC Document 1073-13

Filed 08/26/13 Page 1 of 10

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,

:
:
:
:
:
Plaintiffs,
:
:
v.
:
:
Google Inc.,
:
:
Defendant.
:
:
:
------------------------------------- x

Case No. 05 CV 8136-DC

FILED UNDER SEAL

EXHIBIT

9

TO THE DECLARATION OF MICHAEL J. BONI IN SUPPORT OF PLAINTIFFS’
OPPOSITION TO DEFENDANT GOOGLE’S MOTION FOR SUMMARY JUDGMENT

A-1278
Amazon.com: Steve Hovley: Books

Case 1:05-cv-08136-DC Document 1073-13

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Ball Four by Jim Bouton (Jul 12, 1990)
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Excerpt - Front Matter: "... One of my roommates, Steve Hovley, said I was the first fan to make it ..."
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Baseball's New Frontier: A History of Expansion, 1961-1998 by Fran Zimniuch
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Excerpt - Page 66: "... Harris (IF) Cleveland 35 - Steve Hovley (OF) California 38 - Don O ..." See a
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Nine Innings by Daniel Okrent (Apr 10, 2000)
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4.

Baseball Eccentrics: A Definitive Look at the Most Entertaining, Outrageous
and Unforgettable Characters in the... by Bill "Spaceman" Lee and Jim Prime (Apr
1, 2007)
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Excerpt – "... he said. Steve Hovley Steve Hovley was a California free spirit and ..." Read More
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The Gigantic Book of Baseball Quotations by Wayne Stewart and Roger Kahn

(Oct 1, 2007)

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Excerpt - Page 562: "... negative feedback. — Steve Hovley of the Seattle Pilots My ..." See a random
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6.

A's Essential: Everything You Need to Know to Be a Real Fan! by Steven
Travers and Billy Beane (Apr 1, 2007)

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Excerpt - Back Matter: "... House (C) Ben Houser (1B) Steve Hovley (OF) Steve Howard (OF) Jay ..."
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7.

The Funniest Baseball Book Ever: The National Pastime's Greatest Quips,
Quotations, Characters, Nicknames, and... by Peter Handrinos (Apr 6, 2010)
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Excerpt - Page 176: "... With me still in it. sTEvE HovLEy Retirement As a group, their ..." See a
random page in this book.
8.

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Yankee Pride: The Story of the New York Yankees in the 1960s ... Baseball's
Real Golden Age by Carroll Conklin (Jun 7, 2012)

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Excerpt - Page 295: "... inning on an RBI single from Steve Hovley (16) and a 3- run homer from ..."
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Now Batting, Number...: The Mystique, Superstition, and Lore of Baseball's
Uniform Numbers by Jack Looney and John Tremmel (Jan 1, 2007)
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Excerpt – "... F' 29 TOM MURPHY-P ~ O 30 STEVE HOVLEY-OF 32 MIKE (RED) HEDLUND-P 33
..." Read More
10.

Angels Journal: Year by Year and Day by Day with the Los Angeles Angels
Since 1961 by John Snyder (Apr 13, 2010)
(3)

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Excerpt - Page 46: "... Randy Brown (18th round) and Steve Hovley (35th round) played in the ..."
See a random page in this book.
11.

Baseball State by State: Major and Negro League Players, Ballparks,
Museums and Historical Sites by Chris Jensen (Jul 26, 2012)

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Excerpt - Index: "... 253 Houston, Tyler 184-185 Hovley, Steve “Orbit,” “Tennis Ball ..." See a random
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No-Hitters: The 225 Games, 1893-1999 by Allen Lewis (Feb 15, 2000)

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Excerpt – "... Mayberry. A one-out walk to Steve Hovley mattered little. The ..." Read More

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Dog Days: The New York Yankees' Fall From Grace and Return to Glory, 19641976 by Philip Bashe (Sep 30, 2000)

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Excerpt – "... such notorious "flakes" as Boston's Bill Lee and Seattle's Steve Hovley ..." Read More
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Leadoff Batters of Major League Baseball: Complete Statistics, 1900-2005 by
Herman O. Krabbenhoft (Jan 11, 2006)
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Excerpt - Index: "... 339 Householder, Paul ¡70 Hovley, Steve 256, 258 Howard, David 256 ..." See a
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Complete Baseball Record Book 1999 (Serial) by Craig Carter (Apr 1999)
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Excerpt – "... homers by rookie Most hits 3-Steve Hovley, 91 games, 1969 126-Tommy ..." Read More

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One Win Wonders by George Rose (Feb 7, 2009)
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Excerpt – "... right to centerfielder Steve Hovley. From the time the pitch left ..." Read More
17.

The Baseball Rookies Encyclopedia by Dave Zeman and David J. Nemec (Oct 2004)
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Excerpt – "... than 23 games. Outfielder Steve Hovley hit .277 in 91 contests ..." Read More
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A-1283
Amazon.com: Steve Hovley: Books

Case 1:05-cv-08136-DC Document 1073-13

Filed 08/26/13 Page 7 of 10

The McFarland Baseball Quotations Dictionary, 3d ed. by David H. Nathan (Feb 8,

amazon

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Excerpt - Page 248: "... cracker.— Outfielder Steve Hovley. 4579 A man once told me to ..." See a
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19.

The Ultimate Celebrity Address & Phone Book: Autograph Collecting & Media
Guide by Cord Coslor (Nov 1, 2004)
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Excerpt - Page 171: "... Fax #: e-mail: Web: Info: Steve Hovley - **NOT** 205 1/2 S Lomita ..." See a
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Day-by-Day in Baltimore Orioles History by Ted Patterson (May 1, 1999)

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Excerpt – "... Stadium as Amos Otis and Steve Hovley collide while going after ..." Read More

21.

The Hard Way: Writing by the Rebels Who Changed Sports by Will Balliett and
Thomas Dyja (Nov 9, 1999)
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Excerpt – "... all your weapons. One thing you don't do is what Steve Hovley did. ..." Read More

22.

Complete Baseball Record Book by Craig Carter (Feb 21, 2001)
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Excerpt – "... Most homers by rookie 3-Steve Hovley, 91 games, 1969 Danny Walton ..." Read More

23.

A Catcher's Story by Jim Hibbs (Apr 4, 2012)

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Excerpt - Front Matter: "... our baseball lives our paths would intertwine. His name is Steve Hovley ..."
See a random page in this book.
24.

Baseball's Greatest Quotations Rev. Ed.: An Illustrated Treasury of Baseball
Quotations and Historical Lore by Paul Dickson (Sep 2, 2008)

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A-1284

..

Amazon.com: Steve Hovley: Books

Case 1:05-cv-08136-DC Document 1073-13

Filed 08/26/13 Page 8 of 10

BASEBALL'S
"'":RtA~

QUOTATIONS

_~.~i~~

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Excerpt – "... b) Steve Hovley, (c) Mike Marshall, (d) Mike Shan- non. ..." Read More

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A-1285
Amazon.com: Steve Hovley: Books

Case 1:05-cv-08136-DC Document 1073-13

Filed 08/26/13 Page 9 of 10

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Complete Baseball Record Book, 2004 Edition by Sporting News and The Sporting

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A-1287
Case 1:05-cv-08136-DC Document 1073-14

Filed 08/26/13 Page 1 of 3

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,

:
:
:
:
:
Plaintiffs,
:
:
v.
:
:
Google Inc.,
:
:
Defendant.
:
:
:
------------------------------------- x

Case No. 05 CV 8136-DC

FILED UNDER SEAL

EXHIBIT

10

TO THE DECLARATION OF MICHAEL J. BONI IN SUPPORT OF PLAINTIFFS’
OPPOSITION TO DEFENDANT GOOGLE’S MOTION FOR SUMMARY JUDGMENT

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Case 1:05-cv-08136-DC Document 1073-14

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Minoru Yasui v. U S U.S. Supreme Court Transcript of Record with Supporting
Pleadings by E F BERNARD, Additional Contributors and U.S. Supreme Court (Oct 27,

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Strangers from a Different Shore: A History of Asian Americans, Updated and
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Excerpt - Page 408: "... orders were unconstitutional, Minoru Yasui of Portland refused to obey ..." See
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Workplace English Language Japanese Language Book by Minoru Yasui (2004)
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Hood River, Oregon: People from Hood River, Oregon, Minoru Yasui, Cecil D.
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Shogakukan Random House English-Japanese Dictionary by Minoru Yasui,
Tetsuya Kunihiro, Katsuaki Horiuchi, Stuart Berg Flexner Eds Tomoshichi Konishi (1994)

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Only What We Could Carry: The Japanese American Internment Experience by
Lawson Fusao Inada (Aug 1, 2000)
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A-1289
Amazon.com: Minoru Yasui: Books

Case 1:05-cv-08136-DC Document 1073-14
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Constitutional Law Stories, 2d by Michael C. Dorf (Jul 9, 2009)

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A Principled Stand: The Story of Hirabayashi v. United States (Scott and
Laurie Oki Series in Asian American Studies... by Gordon Hirabayashi, James A.
Hirabayashii and Lane Ryo Hirabayash (Mar 22, 2013)
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Eigogaku shi (Gendai no Eigogaku shirizu) (Japanese Edition) by Minoru Yasui
(1988)
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Current bibliography on linguistics and English linguistics 1978-1982 by Minoru
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A Better Guide to English Grammar [In Japanese Edition] by Yasui Minoru (1982)
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Asian American: Minoru Yasui by Beth Lyons

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A-1290
Case 1:05-cv-08136-DC Document 1074

Filed 08/26/13 Page 1 of 12

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.
Google Inc.,
Defendant.

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

DECLARATION OF PAUL AIKEN IN SUPPORT OF PLAINTIFFS'
OPPOSITION TO DEFENDANT GOOGLE'S MOTION FOR SUMMARY
JUDGMENT

I, Paul Aiken, hereby declare as follows:
1.

I am the Executive Director of the Authors Guild, Inc. I have been

employed by the Authors Guild since April 1993, first as a staff attorney, then as
Assistant Director, and finally at my current position since 1996. I am a 1985 graduate of
Cornell Law School and an attorney licensed to practice in New York.
2.

I submit this declaration in opposition to Defendant's Motion for

Summary Judgment and specifically to correct Google's repeated distortions and misuse
of my deposition testimony. I have personal knowledge of the facts set forth in this
Declaration and could testify competently at a hearing if called upon to do so.
3.

At my deposition, Google's counsel asked whether I, and the Authors

Guild, thought browsing of physical books in bookstores helped to sell books (transcript

A-1291
Case 1:05-cv-08136-DC Document 1074

Filed 08/26/13 Page 2 of 12

pp. 146-147) and whether Amazon's Search Inside the Book program promoted sales
(transcript p. 186). I answered yes to both. Goog1e's brief now seeks to mischaracterize
my answers for a different, broad proposition that: "The Authors Guild believes that
online browsing has a net positive effect on book sales" (Google Br. p. 17), implying that
the Authors Guild endorses Google's practices at issue in this litigation. To explain my
actual answer in more detail, and to rebut Google's false inference, I provide the
following description of Amazon's practices. We do not support Google's far different
actions, which we consider to be copyright infringement, and which prompted the
Authors Guild to become a plaintiff in this lawsuit.
4.

While it is true that displaying book excerpts at an online bookstore is

believed by most people in the book industry (including me) to increase sales of most
books, there is no evidence I am aware of that displaying "snippets" of copyrighted text

at an online search engine increases book sales at all. I do believe that displaying
snippets of copyrighted text helps Google sell its ads, however.
5.

Google's search engine has many merits, but as an online shopping

environment, it's a poor substitute for Amazon.com. To the extent Google's unauthorized
display of snippets lures readers away from online bookstores such as Amazon, which
has displayed lengthy, authorized previews of books for a decade, there can be little
doubt that Google is actively harming book sales.
6.

A look at the history of Google' s library project and its competition with

Amazon, which had launched its own historic book-scanning project years before Google
initiated its unauthorized scanning of millions of copyright-protected books, makes it
inescapably apparent that luring readers from Amazon's online bookstore, the most

2

A-1292
Case 1:05-cv-08136-DC Document 1074

Filed 08/26/13 Page 3 of 12

successful online shopping environment on the Internet, to Google's search engine, the
most successful advertising environment on the Internet, is precisely what Google had in
mind when it began scanning millions of copyright-protected books.
Amazon's Book-Scanning Project

7.

Because of its potential effects on our members' copyright interests, the

Guild's board of directors and legal staff have followed book-scanning efforts with great
interest.
8.

On October 23, 2003, Amazon.com launched "Search Inside the Book,"

which allowed users of Amazon's website to search more than 120,000 books, or 33
million pages, at the time it launched, according to Amazon's press release. (See
Attachment A: Amazon Press Release: "Amazon. com Launches 'Search Inside the Book'
Enabling Customers to Discover Books by Searching and Previewing the Text Inside:
Leading-Edge Search Technology Delivers a Book-Buying Experience Previously
Unavailable in the Physical or Online Worlds.")
9.

With "Search Inside the Book," not only could Amazon's customers

search these 120,000 books, they could preview entire book pages containing the search
terms. Customers were required to log in with their Amazon user names and passwords to
preview entire book pages, so they could instantly purchase the books they were
browsing. As Amazon explained in its press release:
Here's how it works:
•

Customers interested in resistojet propulsion can search for
"resistojet" and will automatically see a list of the many books at
Amazon.com that contain this term in the text, in addition to those
books that contain the term in the title.
Books with "resistojet" in the text will display an excerpt including
that word or phrase and a link that says "See more references to

3

A-1293
Case 1:05-cv-08136-DC Document 1074

Filed 08/26/13 Page 4 of 12

'resistojet' in this book." By clicking on this link, customers will
see a list of excerpts from all pages on which "resistojet" appears
in the book they selected, as well as a link to view the full page
from the book on which the excerpt appears.
•

Once customers have clicked on the link to a specific page and
signed in with their Amazon.com user name and password, they
can preview relevant pages, including the page they selected, and
search for other terms of interest within the book.

ld
10.

The announcement was a momentous one in the book world. It was clear

to most industry observers that Amazon's ambitions for the program were enormous.
Indeed, Amazon had agreements with more than 190 publishers to digitize books for
Search Inside the Book, according to its press release, including many of the largest U.S.
publishers, such as John Wiley & Sons (publisher of plaintiff Jim Bouton's Ball Four),
Random House, Simon & Schuster, Time Warner, HarperCollins, McGraw-Hill, and
Holtzbrinck. The number of participating publishers would rapidly grow to include nearly
every book publisher in the U.S.
11.

A critical component of "Search Inside the Book" is that users had to log

in with their Amazon user names and passwords before they could view full pages of the
books. In that way, those virtually browsing the books would have Amazon's famous
one-click purchase button at the ready. While there was disagreement as to the magnitude
of the impact of Search Inside the Book on book sales, all early reports - and all reports
to this day - agreed that Search Inside the Book boosted sales for most of the books in the
program.

4

A-1294
Case 1:05-cv-08136-DC Document 1074

Filed 08/26/13 Page 5 of 12

Amazon and the Search Engine Market
12.

The implications for Search Inside the Book went far beyond the book

industry, however. Amazon was offering searchable content that no other entity, not even
Google, had, and that content was based on contracts negotiated with hundreds of
publishers. A November 12,2003, article in Wired magazine made this abundantly clear:
Of course, Amazon is not merely part of the book business. The Internet
as a whole is going through a similar transition. Revenue for Internet
companies increasingly comes from users seeking to buy something - from
transactions made in the physical world. Even Google, which doesn't sell
anything directly, earns most of its cash from advertisers whose messages
pop up when users search for info about specific products, such as
computers or cars - or books. With retail at the center of the Internet
industry, Google is a key competitor because customers begin their online
shopping trips at search engines that offer neat algorithms for comparing
prices across multiple vendors. Everybody - Yahoo!, eBay, AOL,
Microsoft, and, of course, Amazon - wants to be the site of first resort.
All the leading retail sites have better knowledge of their customers than
Google. But Google is the leading Internet information tool, period.
Google is a window onto the entire Web. On the other hand, the contents
of books may be the only publicly accessible data set with the potential to
match Google's Web index bothfor size and utility. Search Inside the
Book makes Amazon the sole guide to tens and ultimately hundreds of
millions ofpages of iriformation. And while Google's business is
vulnerable to any competitor that builds a better search engine, Amazon's
book archive is the product ofnegotiated contracts with hundreds of
publishers. Amazon has cornered the market on information that was once
hidden away in books. The burden of the physical - the fact that the
database Amazon uses is linked into a complex system involving real
things - gives it a stunning, if perhaps temporary, advantage.
"The Great Library of Amazonia," Wired Magazine, November 12,2003. Attachment B.
(Emphasis added.)
13.

Gary Wolf, author of the Wired article, wrote about the critical limitations

placed on Search Inside the Book:
The archive is intentionally crippled. A search brings back not text, but
pictures -- pictures of pages. You can find the page that responds to your

5

A-1295
Case 1:05-cv-08136-DC Document 1074

Filed 08/26/13 Page 6 of 12

query, read it on your screen, and browse a few pages backward and
forward. But you cannot download, copy, or read the book from beginning
to end. There is no way to link directly to any page of a book. If you want
to read an extensive excerpt, you must turn to the physical volume -which, of course, you can conveniently purchase from Amazon. Users will
be asked to give their credit card number before looking at pages in the
archive, and they won't be able to view more than a few thousand pages
per month, or more than 20 percent of any single book.

Id.
14.

Wolf reported that he spoke to Amazon CEO Jeff Bezos about the project,

who was emphatic about his purposes:
Bezos is vehement on this point. He has sold publishers on the idea that
digitizing hundreds of thousands of copyright books won't undermine the
conventional bookselling business. "It is critical that this be understood
as a way to get publishers and authors in contact with customers, " he says
in an interview at Amazon's Seattle headquarters. "We're perfectly
aligned with these folks. Our goal is to sell more books!"
Bezos has some good evidence to back up his argument. Amazon has
consistently added features that have proven to increase book sales.
Through its customer reviews, used-book business, and personalized
recommendations, the company constantly puts its customers in contact
with new titles. Amazon is a machine that stimulates the acquisitive urge
ofreaders. It appeals to their specialized interests.
It makes people buy books.

Id. (Emphasis added.)
15.

While the Authors Guild has had its disagreements with Amazon over the

years, many of them quite sharp, our concerns are focused on Amazon's behavior, which
I personally view as frequently monopolistic and unfairly undermining the livelihoods of
brick-and-mortar bookstores, which many authors depend on for marketing their books. I
have never doubted, however, Amazon's mastery of the online bookselling environment.
My conversations with publishers at the time and since then have confirmed that they

6

A-1296
Case 1:05-cv-08136-DC Document 1074

Filed 08/26/13 Page 7 of 12

agreed to participate in Search Inside the Book because they believed it would sell more
books, and the evidence Amazon provided them supported that belief.
16.

Wolf also visited the home of Udi Manber, the computer scientist hired by

Amazon who had conceived of Search Inside the Book and headed up its implementation
right in Google's backyard, in Palo Alto, California. Manber made the project's limitless
ambitions clear:

Manber invites copyright holders to offer nonexclusive searching and browsing
rights to Amazon, which will digitize the titles and offer access to audiences
forever. "Give the books to me," Manber says. "I am glad to do it."

ld
17.

Amazon was unmistakably on its way to making nearly all in-print books

available for searching and previewing at its online bookstore.
18.

Google had conquered online content, but Amazon, by negotiating

agreements with hundreds of publishers, had gone where Google could not, making tens
of millions of pages of carefully written, edited, and published works, all previously off
line, available to its shoppers. Amazon, by cornering the market on book content, was
suddenly a competitor unlike any Google had ever faced.
19.

The threat to Google's search dominance became even more apparent just

five months later, when Amazon unwrapped its beta version of A9, Amazon's search
engine competitor to Google. John Battelle, a visiting professor at the University of
California, and author of a widely followed blog covering search engines, was one of the
first to report on Amazon' s search effort. "A9, Amazon' s Search Portal, Goes Live:
Reverberations Felt in Valley," John Battelle's Search Blog, April 14,2004. Attachment

C.

7

A-1297
Case 1:05-cv-08136-DC Document 1074

20.

Filed 08/26/13 Page 8 of 12

Battelle was impressed by Amazon's foray into search:

It seems to me, Google's position in Amazon's A9 implementation is at
best a step backwards. If A9 is as good as it seems to be, every customer
that uses and/or switches to A9 becomes an A9 search customer, and,
more likely than not, a deeper and far more loyal Amazon customer. (The
service incorporates a personal search history and many other really neat
tweaks, including a wicked good Toolbar.) In essence. Amazon seems to

be making a play for Google 's customers.
Jd. (Emphasis added.)
21.

Battelle even suggested that Google might be trying to hire Udi Manber,

the brains behind Search Inside the Book and the head of Amazon's innovative and
disruptive A9 search engine project, noting that "Work at Google" was the top paid link
you searched Manber's name at Google. Jd.

22.

Battelle interviewed Udi Manber about Amazon's A9 project for Business

2.0 in an article provocatively entitled "Can Amazon Unplug Google?" Mr. Battelle
writes:
Is Amazon (AMZN) taking on Google? Last fall the giant online retailer
announced that it was launching a company focused exclusively on search.
Lest anyone miss the implications, Amazon promptly rented an office far
from its Seattle headquarters - in the epicenter of Silicon Valley, near
Stanford University. That's where both Google and Yahoo (YHOO) were
born.

***
Amazon recently took the wraps off its initial public beta version of A9,
and we got the first sneak peek. It's easy to see why the new engine might
set Google and other search-driven companies on edge: A9 is a credible
step toward making a search engine that knows you and acts as your agent
online.

"Can Amazon Unplug Google?" Business 2.0, April 15, 2004. Attachment D.
23.

In September 2004, A9 moved out of beta. The New York Times reported:

8

A-1298
Case 1:05-cv-08136-DC Document 1074

Filed 08/26/13 Page 9 of 12

Amazon.com, the e-commerce giant, plans to take aim at the Internet
search king Google ... Amazon's entry into the search engine wars will
certainly raise the stakes in an already heated battle for control of what is
believed to be the high ground in Internet commerce and advertising.
The A9 search engine offered user content Google could not match: the millions of book
pages available (to those who logged in with their user names and passwords) through
Search Inside the Book .. "Amazon to Take Searches on Web to a New Depth," New
York Times, September 15,2004. Attachment E.
24.

A9' s launch came at a critical time in the corporate history of Google, six

years after the company was incorporated, and, as the Times noted, just one month after
Google made its initial public offering of stock. Id. Google had a well-financed,
innovative, disruptive competitor in its own back yard.

Google Trumps Amazon, by Avoiding Rights Holders and Their Interests
25 .

Google didn't stand still. Three months after the formal launch of

Amazon's A9 search engine, with its unique access to an expanding list of in-print,
copyright-protected books Amazon scanned with the permission of the books' publishers,
Google struck back. It announced that it would begin scanning copyright protected books
for its search engine. "All Booked Up," Google's Official B1og, December 14,2004
(available here: ht:tp:ijgo()glcblog . blogspot.com/2QQ4!1~~ll.~book~~.:-1Ip".html); Zack Decl.

Ex. 12.
26.

Google had come up with a way to neatly leapfrog Amazon's scanning

efforts: it would scan copyright-protected books without permission, claiming that its
scanning and snippet display were covered by fair use (even when it was scanning and
displaying in-print books that had been scanned, or were eligible for scanning, by
Amazon).

9

A-1299
Case 1:05-cv-08136-DC Document 1074

27.

Filed 08/26/13 Page 10 of 12

Rather than painstakingly seeking permission from rights holders, who

might require a share in advertising revenue, or who might require that users be logged in
to one-click purchasing accounts before viewing portions of their books, or who might
demand control over the display, storage and security of their books, Google chose
instead to negotiate with libraries, offering copies ofthe authors' and publishers' own
books in compensation for access to the libraries' repositories.
28.

Google's library project would soon begin displaying snippets of authors'

and publishers' in-print books in competition with the authorized displays available at
Amazon and, later, BamesandNoble.com and other online retailers. To the extent Google
succeeds in luring readers to its search engine and away from online bookstores, Google
surely harms book sales.
29.

It isn't just in-print books that are affected. By December 2004, when

Google announced its massive scanning-and-display project, thousands of formerly outof-print books were being made available by print-on-demand technology, including
more than a thousand works by Authors Guild members we made available through our
Backinprint.com program. Since then, surely tens ofthousands of more out-of-print
books are commercially available again, brought into print by countless publishers such
as university presses, newcomers such as Open Road Media, and publishing programs at
Amazon and Barnes & Noble.
30.

Amazon and Udi Manber, incidentally, were not done with their disruptive

innovation of the search business. In January 2005, The month after Google announced
its copyright-infringing leap into getting books into its search engine, Manber and A9

10

A-1300
Case 1:05-cv-08136-DC Document 1074

Filed 08/26/13 Page 11 of 12

caught Google flat-footed by unveiling another groundbreaking set of content unavailable
at Google: street views for A9's maps:

"We allow people from their computer to look at the street, to walk to the
left, to walk to the right, to see the neighborhood, to see parking-it's virtually
like you're there," said Udi Manber, president of A9.com. "Pictures get you
information faster than any other way. Very often you remember a place but not
its name. This is a very easy way to find it."
To create this system, A9 developed technology that combined digital
cameras, GPS location systems and other hardware, and equipped vehicles with
this technology to capture images of buildings and geotag them with location
information. The company then hired drivers to cover 'tens of thousands of miles'
to acquire images, according to Manber.
The system is almost entirely automated, and drivers make their rounds
through cities at normal speed. "We can do that at a very large scale very
efficiently and at very low cost," said Manber.
"Amazon's A9 Launches Visual Yellow Pages," Search Engine Watch, January 26,2005.
Attachment F.
31.

Google addressed the Udi Manber problem a year later, hiring him in

February 2006. "Google Hires Amazon Search Chief," Seattle Post-Intelligencer,
February 7, 2006. Attachment G. A9 would then quickly fade as an innovative threat to
Google, and Google would introduce its A9 street view equivalent in May 2007, more
than two years after A9's version became available. "Google Announces New Mapping
Innovations at Where 2.0 Conference," News from Google, May 29, 2007, Attachment
H.

Book Excerpts Do Sell Books, at Online Bookstores
32.

The Authors Guild, as Google points out, does believe that allowing

readers to search and view selections of books online can promote the sale of books. But
the context for those book displays is crucial. If the book excerpts are displayed in a

11