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]

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bookselling environment, then book sales are generally promoted. Ifbook excerpts are
displayed in a search engine's advertising-driven environment, then ad sales are generally
promoted.
33.

To the extent Google's unauthorized displays of books encourages readers

to search at its ad-supported search engine, rather than logging in to Amazon's retail
environment, Google is hurting the sales of authors' books. For this reason, and many,
many others, authors and other rights holders should have control of when their books are
copied in their entirety, and where their books are displayed.
34.

Google, in other words, disrupted the commercial, permission-driven

development of book-search-and-display at online bookstores in order to gain a
competitive advantage over other search engines. In the process, it distributed millions of
digitized books to universities, placing those books beyond the control of authors and
publishers and putting them at plain risk of widespread infringement.
I declare under penalty of perjury that the foregoing is true and correct.

Dated: New York, New York
August 26, 2013

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------------------- x
The Authors Guild, Inc., Associational Plaintiff,
Betty Miles, Joseph Goulden, and Jim Bouton,
individually and on behalf of all others similarly
situated,

Case No. 05 CV 8136-DC

Plaintiffs,

v.
Google Inc.,
Defendant.

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

ATTACHMENT

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

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Print Page

Close Window

Press Releases
« Back

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
SEATTLE--Oct. 23, 2003-- Amazon.com (Nasdaq:AMZN) today announced the launch of its latest innovation for
customers, Search Inside the Book, an entirely new way for customers to find and discover books by searching the
full text inside them, not just matches to author or title keywords.
In collaboration with publishers, Amazon.com is enabling customers to find books at Amazon.com based on every
word inside more than 120,000 books -- more than 33 million pages of searchable text. Customers can also
preview the inside text of these books. Search Inside the Book is integrated into Amazon.com's standard search
and includes books from all genres.
"Innovation drives customer experience, and Search Inside the Book is a great example," said Jeff Bezos, founder
and CEO, Amazon.com. "With the help of publishers, we're offering a completely new way for people to find the
books they want."
"The customer in me loves this," said Maureen Egen, president of Time Wamer Book Group.
Through Search Inside the Book, customers can find, discover and buy titles from more than 190 publishers,
including the industry's largest: Wiley, Time Warner Book Group, Simon & Schuster, Inc., Random House, Inc.,
Publishers Group West, Incorporated, McGraw-Hili Professional, Holtzbrinck Publishers and HarperCollins
Publishers.
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 '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.
Additional examples include:
Those looking to explore the scenic Multnomah Falls can search for this term to discover a wide range of
related titles ranging from lodging and hiking guidebooks, to Leslie Carraway's "Land Mammals of Oregon."
• Searching for "Curse of the Bambino" provides baseball lovers and Red Sox fans with a variety of books on
the subject -- everything from "Deep Change: Discovering the Leader Within" to "Uncle John's Giant 10th
Anniversary Bathroom Reader."

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Customers who search for "product price elasticity" will discover more than 100 titles, including Michael
Porter's "Competitive Strategy: Techniques for Analyzing Industries and Competitors," and David Besanko's
"Economics of Strategy, 2nd Edition," which includes 32 references to this exact subject.
Customers are encouraged to type words and phrases of interest into the new search box, and enjoy whatever
surprises they might find.
To encourage customers to share their experiences using Search Inside the Book, Amazon.com is running a
contest that will award one grand prize winner a Segway Human Transporter. Ten additional customers will each
win a $100 Amazon.com gift certificate. Visit our "How It Works" page
(www.amazon.com/exec/obidos/tg/browse/-/101970211) to enter the contest, learn more about the new feature,

and see more sample searches.
About Amazon.com
Amazon.com, a Fortune 500 company based in Seattle, opened its virtual doors on the World Wide Web in July
1995 and today offers Earth's Biggest Selection. Amazon.com seeks to be Earth's most customer-centric company,
where customers can find and discover anything they might want to buy online, and endeavors to offer its
customers the lowest possible prices. Amazon.com and sellers list millions of unique new and used items in
categories such as apparel and accessories, sporting goods, electronics, computers, kitchenware and housewares,
books, music, DVDs, videos, cameras and photo items, toys, baby items and baby registry, software, computer and
video games, cell phones and service, tools and hardware, travel services, magazine subscriptions and outdoor
living items.
This announcement contains fOlWard-looking statements within the meaning of Section 27A of the Securities Act of
1933 and Section 21 E of the Securities Exchange Act of 1934. Actual results may differ significantly from
management's expectations. These fOlWard-looking statements involve risks and uncertainties that include, among
others, risks related to potential future losses, significant amount of indebtedness, competition, commercial
agreements and strategic alliances, seasonality, potential fluctuations in operating results and rate of growth,
foreign exchange rates, management of potential growth, system interruption, international expansion, consumer
trends, inventory, fulfillment center optimization, limited operating history, government regulation and taxation,
fraud, and new business areas. More information about factors that potentially could affect Amazon.com's financial
results is included in Amazon.com's filings with the Securities and Exchange Commission, including its Annual
Report on Form 1O-K for the year ended December 31, 2002, and all subsequent filings.
CONTACT:
Amazon.com, Seattle
Public Relations, 206-266-7180
SOURCE: Amazon.com

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------------------- x
The Authors Guild, Inc., Associational Plaintiff,
Betty Miles, Joseph Goulden, and Jim Bouton,
individually and on behalf of all others similarly
situated,

Case No. 05 CV 8136-DC

Plaintiffs,
v.

Google Inc.,
Defendant.

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

ATTACHMENT

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

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E

The Great Library of Amazonia
120,000 fully searchable texts and counting ... Jeff Bezos is building the world's
biggest digital book archive. It's an info-age dream come true - and the best way to
sell books ever.
By Gary Wolf

The fondest dream of the information age is to create an archive of all knowledge. You might call
it the Alexandrian fantasy, after the great library founded by Ptolemy I in 286 Be. Through
centuries of aggressive acquisition, the librarians of Alexandria, Egypt, collected hundreds of
thousands of texts. None survives. During a final wave of destruction, in AD 641, invaders fed
the bound volumes and papyrus scrolls into the furnaces of the public baths, where they are said
to have burned for six months. "The lesson," says Brewster Kahle, founder of the Internet
Archive, "is to keep more than one copy."
Kahle recently gave a copy of his digital archive of 10 billion Web pages to a new library in
Alexandria. On a visit to the city last year, he sat down with Suzanne Mubarak, the wife of
Egypt's president, and discussed his gift, which has all the advantages of a modern electronic
resource: It can be instantly updated, easily searched, and endlessly replicated. Mubarak, with
diplomatic politeness, allowed that she was impressed. Still, she ventured a protest: "But I love
books!"
Therein lies a problem. Books are an ancient and proven medium. Their physical form inspires
passion. But their very physicality makes books inaccessible to the multi-terabyte databases of
modern Alexandrian projects. Books take time to transport. Their text vanishes and their pages
yellow in a rash of foxing. Most important, it's still shockingly difficult to find information buried
in books. Even as the Internet has revived hope of a universal library and Google seems to
promise an answer to every query, books have remained a dark region in the universe of
information. We want books to be as accessible and searchable as the Web. On the other hand,
we still want them to be books.
An ingenious attempt to illuminate the dark region of books is under way at Amazon.com. Over
the past spring and summer, the company created an unrivaled digital archive of more than
120,000 books. The goal is to quickly add most of Amazon's multimillion-title catalog. The entire
collection, which went live Oct. 23, is searchable, and every page is viewable.
To build the archive, Amazon CEO Jeff Bezos has had to unravel a tangle of technological and
copyright problems. His solution promises to remake the publishing business and give Amazon a
powerful new weapon in its battle against online competitors such as Yahoo, Google, and eBay.
But the most interesting thing about the archive is the way it resolves the paradox of the book,
respecting its physical form while transcending its limits.
I recently drove to a home in Silicon Valley and spent a few hours digitally searching the text of
books. My host was Udi Manber, an Israeli-born computer scientist and author of a popular
textbook, Introduction to Algorithms: A Creative Approach. Ten years ago, while developing a
seminal piece of Unix search software called agrep, Manber came up with a concept for an

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information tool he has yet to build. It was supposed to search the mess of papers on his desk.
The idea that you could perform a digital search of physical objects has long fascinated him.
"Why not have users take pictures of their bookshelf?" Manber asked when we first met. "We
could scan the images, extract the titles, and then let them search the entire text of the books
they own."
The notion of Amazon scanning all of its books but allowing users to search only those they own
is a clever way around the central barrier to creating a digital archive: Copyrights are distributed
among tens of thousands of publishers and authors. But when Manber told Bezos his idea, he
found the Amazon founder ready to work on a grander scale. Bezos wanted his customers to be
able to search everything.
In his small, ranch-style Palo Alto house, Manber and I sit side by side at a table near the
kitchen as he begins typing my queries into his laptop. The computer is connected to a prototype
of the archive, which at the time of my visit is scheduled to go live in a few weeks. Within
seconds, I am captivated. The experience reminds me of how I felt a decade ago, when I first
began browsing the Web. Back then, the Web was still small, and most of my time was spent
peeking into the homepages of physicists and engineers. Even so, the power of the new network
was unmistakable. The thrill didn't come from the content of the pages but from the structure of
the Web itself, its obvious scalability and ease of navigation.
Amazon's new archive is more densely populated than the early Web was, but it's still far from
complete. With its 120,000 titles, the archive has about as many books as a big brick-andmortar store. Still, this is plenty to create a familiar sensation of vertigo as an expansive new
territory suddenly opens up.
The more specific the search, the more rewarding the experience. For instance, I've recently
become interested in Boss Tweed, New York's most famous pillager of public money. Manber
types "Boss Tweed" into his search engine. Out pop a few books with Boss Tweed in the title. But
the more intriguing results come from deep within books I never would have thought to check: A
Confederacy of Dunces, by John Kennedy Toole; American Psycho, by Bret Easton Ellis; Forever:
A Novel, by Pete Hamill. I immediately recognize the power of the archive to make connections
hitherto unseen. As the number of searchable books increases, it will become possible to trace
the appearance of people and events in published literature and to follow the most digressive
pathways of our collective intellectual life.
From the Hamill reference, I link to a page in the afterward on which he cites books that
influenced his portrait of Tweed. There, on the screen, is the cream of the research performed by
a great metropolitan writer and editor. Some of the books Hamill recommends are out of print,
but all are available either new or used on Amazon.
With persistence, serendipity and plenty of time in a library, I may have found these titles
myself. The Amazon archive is dizzying not because it unearths books that would necessarily
have languished in obscurity, but because it renders their contents instantly visible in response
to a search. It allows quick query revisions, backtracking, and exploration. It provides a new
form of map.
Getting to this point represents a significant technological feat. Most of the material in the
archive comes from scanned pages of actual books. This may be surprising, given that most
books today are written on PCs, e-mailed to publishers, typeset on computers, and printed on
digital presses. But many publishers still do not have push-button access to the digital files of
the books they put out. Insofar as the files exist, they are often scattered around the desktops of
editors, deSigners, and contract printers. For books more than a few years old, complete digital
files may be lost. John Wiley & Sons contributed 5,000 titles to the Amazon project -- all of them
in physical form.

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Fortunately, mass scanning has grown increasingly feasible (see "3 Ways to Scan a Library"),
with the cost dropping to as low as $1 each. Amazon sent some of the books to scanning centers
in low-wage countries like India and the Philippines; others were run in the United States using
specialty machines to ensure accurate color and to handle oversize volumes. Some books can be
chopped out of their bindings and fed into scanners, others have to be babied by a human, who
turns pages one by one. Remarkably, Amazon was already doing so much data processing in its
regular business that the huge task of reading the images of the books and converting them into
a plain-text database was handled by idle computers at one of the company's backup centers.
The copyrights to these titles are spread among countless owners. How was it possible to create
a publicly accessible database from material whose ownership is so tangled? Amazon's solution Is
audacious: The company simply denies it has built an electronic library at all. "This is not an
ebook project!" Manber says. And in a sense he Is right. 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 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.
Manber has built a powerful, even mind-boggling tool, then added powerful constraints. "The
point is to help users find a book," says Manber, "not to make a new source of information."
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 of readers. It
appeals to their specialized interests.
It makes people buy books. But Amazon's scheme would never work if users really wanted their
books in digital form. The magic of the archive lies in the assumption that physical books are
irreplaceable. The electronic text is simply an enhancement of the physical object.

The Amazon project -- dubbed Search Inside the Book -- represents a bold step toward the
dream of a universal library. Bezos refuses any such allusion. But outlines of the Alexandrian
fantasy can clearly be made out in Amazon's innocent book-purchasing tool. The company's
success at launching a massive archive of digital books will undoubtedly fuel enthusiasm for
overturning the current publishing and copyright regime.
I first talked with Brewster Kahle a dozen years ago over a plate of execrable spaghetti in the
kitchen of a flat in San Francisco's Mission District. The apartment served as the headquarters of
WAIS, one of the first Internet search engines, and Kahle was sharing a dinner with me and
several of his employees. He was in his twenties then -- thin, with a mass of unruly curly hair, a
rapid manner of speech, and an unguarded expression . Kahle was already one of the great
enthusiasts of universal information access. A few months earlier, he had left his job at Thinking
Machines, the legendary builder of massively parallel supercomputers, and devoted himself fulltime to refining and selling WAIS.

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To Kahle, it was obvious that vast amounts of useful material could be shared with the general
public via computers, but the Web did not yet exist, and most of the major databases were not
linked. You couldn't do a comprehensive search. WAIS was meant as a remedy, and it proved a
modest success. However, its most significant contribution to Kahle's evangelical mission was a
byproduct of the stock market bubble: In the spring of 1995, AOL bought WAIS for $15 million in
stock. AOL stock soared, and Kahle became rich.
With his money, Kahle started the Internet Archive, while also creating another company that
offered a clever Web search tool called Alexa. In 1999, as the bubble continued to expand, Alexa
was sold to Amazon for $250 million in stock, and Kahle became richer. He's now committed to
public service. The computers of the Internet Archive are in a Mission district warehouse. The
headquarters are in a ramshackle house in the Presidio, a decommissioned Army base near the
Golden Gate Bridge. The office is one of those classic engineer-idealist domains, where
programmers go up the fire stairs because the Inside stairs are broken, and age-old pizza
molders in the refrigerator.
When I call Kahle to ask if I can come talk to him about the state of digital libraries, he says,
"Sure, I'm free right now." I find him substantially the same . "What's the average lifespan of a
Web page?" Kahle asks me when we meet, and then answers himself: "One hundred days!" He
has a slightly accusatory tone, as if I share in the general neglect that led to the erasure of
history - or would, if the machines owned by the Internet Archive weren't so busily preserving it.
The goal of the archive is to save digital information and make it accessible to all. But what,
exactly, is digital information? As the entertainment industry has learned to its great chagrin,
digital information might take the form of music, or movies, or even books. To Kahle, this is a
good thing. The products of human knowledge ought not to be squirreled away where they can't
ever be found.
Kahle hates the idea that when people think of information, they think only of what's accessible
via Google. "Seventy-one percent of college students use the Internet as their research tool of
first resort," he says, citing figures from a 2001 PEW Internet Study. "Personally, I think this
number is low. For most students today, if something is not on the Net, it doesn't exist."
And yet most books are not on the Net. This means that students, among others, are blind to
the most important artifacts of human knowledge . For many students, the Internet actually
contracts the universe of knowledge, because it makes the most casual and ephemeral sources
the most acceSSible, while ignoring the published books. "It's shameful," Kahle continues,
"because we have the tools to make all books available to everybody. You need three things.
Technically, you need storage and connectivity. Storage is easy. For under $10 million, you can
store all published works of humankind back to the Sumerian tablets. The last time they tried
this was in Alexandria, and they had an innovative storage mechanism, too. They had papyrus,
and papyrus was astonishing compared to clay tablets. But we can do better than the
Alexandrians, because we also have connectivity. I have traveled in Uganda and in rural Kenya
and seldom been more than one day's walk from an Internet cafe. It is technologically possible
for most kids in the world to have access to all the books in the world."
The third item on Kahle's list has nothing to do with technological know-how ; it's simply political
will. Here, he finds the situation mixed. "We live in an open SOCiety in which the concept of
widespread knowledge is embraced as a goal of governance," he says. "Just look at our libraries.
Public libraries spend $7.6 billion a year; academic libraries spend another $5 billion." That's the
good news. The budgets are hard evidence of a public commitment to the Alexandrian ideal. But
on the other hand, almost none of this money goes to digitizing books.
The Internet Archive turned Kahle into an expert in managing huge databases of publicly
accessible information . Now - in partnership with Carnegie Mellon University, the National
Science Foundation, and the governments of India and China - his goal is to create a digital

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archive of 1 million books. Books from the us are packed into containers and shipped to India to
be scanned and proofread, then the digital files go to the Internet Archive and the books are
returned to the owners. Kahle and his partners are hoping to have about 100,000 online by the
end of the year, making this project almost as big, at least numerically, as Amazon's effort. "We
chose a million books because it's a big number," admits Kahle. "It's something you can strive
for."
But in reality, the Million Book Project lags far behind Amazon's effort. For one thing, libraries
have been slow to lend parts of their collections. And even then, the project concentrates on
digitizing those that are out of copyright. Libraries and nonprofits don't have much leverage with
publishers, and since the goal is fully readable online text, there is no system to protect the
interests of copyright holders. As a result, many of the titles being digitized by the Million Book
Project are government documents, old texts, and books from India and China, where copyright
laws are less stringent.
Kahle is happy to sidestep the problem of digitizing commercially successful books. He has no
wish to antagonize the publishing industry. What he hates is that the Million Book Project cannot
legally digitize countless books that aren't generating money for anybody. US libraries hold
about 30 million unique volumes. No one knows how many of those books continue to be
protected by copyright or are available from commercial publishers. Stili, Kahle says, "they can't
be digitized because the copyrights can't be cleared, and the copyrights can't be cleared because
it's too much work to identify the copyright holders. Some people call them abandonware. I call
them orphans."
"Amazon is taking a cut at the commercially available titles," continues Kahle. "We are going for
the public domain titles. But who is taking care of the orphans? Nobody."
This is no longer true. Kahle's plea on behalf of orphaned books, stripped of its sentiment and
restated in the rational voice of finance, exactly expresses the logic of Amazon's Alexandrian
venture. Latent within the new archive is a business model for selling books that, with a little
legal help, ought to vanquish orphanhood forever.
The publishing industry has made great strides since the Roman era. Movable type was invented
in 11th-century China, then reinvented in 1450 in Germany. In 1886, Ottmar Mergenthaler
created an automatic typesetting machine. In 1983, we got desktop publishing. But publishers
continue to edit books using four colors of pencil, and the idea of freely accessible digital files
conjures nightmares of a peer-to-peer disaster among media corporations. Things are even
going backward - Barnes & Noble recently announced it would stop selling ebooks.
In this context of change, confusion, and fear, Jeff Bezos is forced to behave like a politician.
Talk of a universal library elicits no enthusiasm from him. When I mention it, he counsels caution
and patience. "You have to start somewhere," he says. "You climb to the top of the first tiny hill,
and from there you see the next hill. It's difficult to see what's beyond before you have climbed
the first hill."
When I met Bezos the first time, in 1996, there was no masking the radical nature of his ideas.
At the time, he was trying hard to prove that you could create a major retail company on the
Web. Skeptics abounded, and he answered them with vivid descriptions of the future. All of
Amazon's important innovations - starting from the concept of a Web bookstore - have
suggested a profound change in the bookselling bUSiness, a change that makes it possible to
earn a profit by selling a much wider variety of books than any previous retailer, including many
titles from the so-called long tail of the popularity curve. "If I have 100,000 books that sell one
copy every other year," says Steve Kessel, an Amazon VP, "then in 10 years I've sold more of
these, together, than I have of the latest Harry Potter."

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In fact, Amazon doesn't have to wade far into the shallows to begin remaking the book business.
Books are abandoned by publishers long before their sales are reduced to one copy every other
year. Under the current publishing system, a title becomes inefficient at thousands of sales per
year. An electronic archive through which readers can find books is an essential counterpart to
Bezos' original vision of an infinitely big bookstore, just as Internet search engines are essential
to the fragmented, increasingly diverse cultures of the Web.
This vision implies that readers will someday be able to purchase books that are printed at the
time they are ordered. On a small scale, that phase of the revolution has already been quietly
accomplished. As part of the Million Book Project, Kahle has created an Internet Bookmobile that
produces decent-quality paperbacks of out-of-copyright books for about $1 each. The
bookmobile consists of a Ford Windstar minivan with a satellite dish, a computer, a printer, and
a binder. Meanwhile, last spring, Amazon announced a partnership with Ingram Industries'
Lightning Source subsidiary, a print-on-demand company that offers more than 100,000 titles with a list that grows by hundreds each week. Lightning Source is the high end, Kahle's Internet
Bookmobile is the low end; both operate on the premise that tiny runs of books can be
affordably made and sold.
With these tools, the concept of out of print is becoming obsolete. A copyright-friendly archive
that allows all books to be easily found plus a books-on-demand printing network gives
publishers an economic motive for reactivating entire back catalogs. As for books whose
copyright holders cannot be found - Kahle's orphans - this is where the copyright law needs to
change. A sensible solution advanced by copyright scholar (and Wired columnist) Lawrence
Lessig and written into a bill before Congress requires that copyright be renewed every 50 years
for a token sum. Anybody who can't be bothered to pay a dollar or two to hold on to a copyright
loses the work to the public domain.
And who will digitize the books once they've been claimed by their copyright holders or lapsed
into the public domain? Project Gutenberg, the first book-digitizing initiative, has put about
10,000 titles online and is rapidly accelerating its effort. The Million Book Project, launched by
Carnegie Mellon computer scientist Raj Reddy, is eager for more volumes. LeSSig, in partnership
with Stanford University librarian Michael Keller, will soon announce a free program to digitize
any out-of-print book whose copyright holder wants to make it available to the public. And of
course, 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."
The original vision of a digital archive of all knowledge renounced paper volumes; physical books
were seen as antiquated, like papyrus or clay tablets. But if electronic archives prove to raise the
value of physical books, a new dream may replace the old one. After talking with Manber, I raise
this question with Kevin Kelly, a Wired founding editor who spent part of his summer trying to
establish a private cooperative library of digital books. The digital titles in Kelly's library would
match the physical books on his shelf. "The idea of ebooks was to do away with paper," he says.
"But really, you want to add dimensionality to a physical object rather than take it away. You
want an enhanced physical world."
In this enhanced physical world, the logic of the book business is transformed. Human attention
is limited, and a massive number of newly browsable books from the long tail necessarily
compete with the biggest best-sellers, just as cable siphons audience from the major networks,
and just as the Web pulls viewers from TV.
This shifts power away from the people who own finite sets of copyrighted material and toward
the people who offer access to information about where this material can be found. Information
about books, not ownership of copyrights, becomes a new center of power. Manber is correct
when he says that Amazon's Search Inside the Book is not an ebook project. It is merely a

http://www.wired.com/wired/archiveI11.12/amazon--.pr.html

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Filed 08/26/13 Page 8 of 9 Page 7 of 8

catalog. But a decade of Internet history proves that the catalog is exactly what you want to
own.
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 both for size and utility. Search Inside the Book makes Amazon the
sole guide to tens and ultimately hundreds of millions of pages of information. And while
Google's business is vulnerable to any competitor that builds a better search engine, Amazon's
book archive is the product of negotiated 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.
This fall, Amazon announced that it was forming A9.com, a new company devoted exclusively to
search technologies. Manber, who leads it, came up with the name by running a simple
compression algorithm on the word algorithms. Algorithms begins with A and is followed by nine
other letters. When Manber explains the name to me, he notes mischievously that another word
can be identically compressed: Alexandria.
Amazon's Alexandrian scheme hinges on the insight that physical books can be turned into
electronic databases and then - in the retail process - turned back into physical books. This is
one of the boldest maneuvers yet in an intense commercial competition, but for all its cunning,
this is a civilized, even civilizing war, one that builds libraries rather than burns them.

3 Ways to Scan a Library
by Dustin Goot
Books today are written on laptops, typeset on PCs, and pumped out on digital presses. But
ironically, the most efficient way to create an electronic library is to scan the printed page. The
technology has come a long way since the days of the Kurzweil machines - hulking, I-ton
scanner/optical character recognition combos that emerged in the early 1980s. Today, the
biggest archiving projects use some combination of these three methods.
Tear Off the Spines
Using a paper guillotine (which looks just like its Bastille cousin), a book's pages are simply
lopped off of the binding and sent through a scanner with an automatic page feeder. High-end
machines cost $25,000 and churn through 90 black-and-white pages per minute, front and back .
Rare books need not apply.
Ship It Overseas
Workers in India, China, and the Philippines earn about 40 cents an hour to manually turn pages
that are zapped by $15,000 overhead scanners. Carnegie Mellon's Million Book Project alone
employs more than 100 Indians for this activity. The Indian government views it as a boon to
local employment.

http://www.wired.com/wired/archivelIl.12/amazon---.pr.html

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Wired 11.12: The1:05-cv-08136-DC Document 1074-2

Filed 08/26/13 Page 9 of 9 Page 8 of8

Hire a Robot
Flipping pages is more complicated than meets the eye, but robots are getting the hang of it.
Earlier this year, Kirtas Technologies introduced a bot that has both an overhead scanner and an
automated page-turning arm. While a book sits open in a special cradle, the arm swoops down,
grabs the top page with gentle suction, and turns it. The machine boasts a speed of 1,200 pages
an hour, but justifying its six-figure price to frugal librarians is tough.

The Digital Book Brigade
by Erik Malinowski
Amazon's Search Inside the Book project is not the only effort to bring the bookshelf to the
desktop - it's just the biggest. From legions of volunteers typing in single pages to small-town
contributors translating their personal libraries into myriad languages, a handful of pioneers have
blazed the digital book trail.

Initiative

Launched

Books
digitized

Goal

What's in it

Who's behind it

Amazon.com's
Search Inside
the Book

2003

120,000

"Millions·

A cross-section
of popular titles

Amazon.com

Project
Gutenberg

1971

10,000

1 million

ClaSSics - as
long as they're
not copyrlg hted

The nonprofit
Literary Archive
Foundation

Million Book
Project

2001

10,000

1 million

Government
docs, old titles,
books from
India

National Science
Foundation,
Carnegie Mellon
NSF, Institute for
Museum and
Library Services,
University of
Maryland
Nonprofit
foundation relying
on individual
private donations

International
Children's Digital
Library

2002

262

10,000

Domestic and
international
children's books

Children's Books
Online: The
Rosetta Project

2000

119

4,500

Antique
children's books
from around
the world

Contributing editor Gary Wolf ([e-mail]) is the author of Wired: A Romance (Random
House),

Copyright © 1993-2004 The Conde Nast Publications Inc. All rights reserved.
Copyright © 1994-2003 Wired Digital, Inc. All rights reserved.

http://www.wired.com/wired/archive/11.12/amazon--.pr.htm1

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Case 1:05-cv-08136-DC Document 1074-3

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,

Case No. 05 CV 8136-DC

Plaintiffs,

v.
Google Inc.,
Defendant.

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

ATTACHMENT

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

A-1315
Case 1:05-cv-08136-DC Document 1074-3 Filed in Valley John 2 of
NEWS: A9, Amazon's Search Portal, Goes Live: Reverberations Felt08/26/13 IPageBatt...5 Page 1 of 4

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NEWS: A9, AMAZON'S SEARCH PORTAL, GOES LIVE: REVERBERATIONS
FELT IN VALLEY
BY IBAT· APRlL 14, 2004

91

CliNe.,:i.-.:J
lEi .mmngl

llke j[Oj

I

A2, Amazon's much discussed skunk works search project
goes live today, so I can finally wnte about it. I saw it last
' -_ _ _ _ _ _.....J month (caveat: unbeknownst to me until recenlly, Amazon
targeted me as Iheir conduit to break this news - I think they wanted it 10 move from thc
blogosphere out, as opposed the WSJ in) and had to keep the damn thing to myself, it was hard, and
here's why: On first blush it's a very, very good service, and an intriguing move by Amazon. It
raises a clear question: How will Google - and more broadly, the entire search· driven worldreact?

I
.

My gut tells me the public face will be one of partnership: Aftcr all, A9 uses Ooogle' search results
and displays at least two paid AdWord listings per result (I've requested comment from Google,
you can imagine I'm not the only one .. . ). But I have to wonder: What business is Google in, after
all? Is it still in the business of just search - as it was back when it was cutting search provisioning
deals right and left, with Yahoo (already ended), AOL (arguablc imperiled due to Gmail and other
trends), Ask, and Amazon? Is it really still in the business of being an OEM to others, a stmtegy
which allowed it to steal those portals' customers? Or. .. has it evolved, to. business where it owns
a large customer base, one it must now position itself to defend?
It seems to me, Ooogle's posi tion 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 andlor switch.. 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. Or
it seems that way to me, anyway Sure, Amazon isn't in thc AdWords business. It's happy to
outsource that to Google and focus on the entire US retail GDP instead ..

I
,

Udi MBll ber. the head IIf A9 alld one or the leading lights of the s."rch community, is
understnndnbly evasive when .sked about this subject, GO<lllle nnd Amazon have always
been Ii'icnds and IlnrtneTS (despite the fact that " Work lit Goo~l c" is the top pnid link when

ou scnrch on '"5 name 0 11 Oooglc). [lUI ns J point nut in the introduction to my ~JJ.§i~~

2.0 interview, to be posted any moment now, one-time partners can quickly become serious
competitors in the Search Find Obtnin market And judging from the look of it, A9 is a very direct
statement from Amazon: We are now officially in the search business, so get used to it
One could argue that A9 is a pure commerce play, not a search portal. After all, that's what the
folks at Amazon ins isted when they founded the company and located it in the heart of
OooglelYahooLand (ie, Palo Alto). But that argument is disingenuous. First off, take a look at the
A9 interface. Where's the commerce? (Answer, it's there, but it's hidden, more on that later when J
post on the service itself), And second, I'd argue that you can't really be in the commerce business
without having at least a strategy for owning search. The reverse also holds true , It's two ends
toward the middle, and by Ihe way, that middle ground is gerting damn crowded - AOL, Yahoo,
MSN, eBaY,IAC, Amazon, Google.
Of course anyone who's been in this game for a while will tell you that Ihe internet industry is rife
with cat and mouse games ofcoopemtion turned to competition. Netscape's outsourced its early
search traffic to Yahoo, therehy ensuring Yahoo's success. Yahoo paid the favor forward by
outsourcing its search to Googlt", u practice it ended only last quarter. Microsoft bui1t Overture, and
crushed Looksmart And AOL ' s advertising business is on the rise again, due in large part to a deal
with Google, which just announced 8 st unniog new email service that pre"y much decapitates one
of AOL'score differentiato" (oh, Yahoo and MSN as well ... ),
What makes this parti cula rly noteworthy is that A9 is built qu ite literally on top of Google. In short,
Amazon has tak en th e best ofGoog!e. and m"de it, to my mind, a lot better Sound familiar? Yup,
it's what Google did to Yahoo, Yahoo to Ne tscape .. . you get the picture.
It all reminds me of a guote in a recent AP story from Google employee # I:

http://battellemedia.com/archives/2004/04/news_ a9._amazons_search--'portal_goes_live_re, ..

8/26/2013

A-1316
Case 1:05-cv-08136-DC Document 1074-3 Filed in Valley John 3 of
NEWS: A9, Amazon's Search Portal, Goes Live: Reverberations Felt08/26/13 IPageBatt...5 Page 2 of 4
(the ongoing threat olcompetition) has helped keep (Jougle!roJ1l bc<'.'olnmg cumplae,:enl, su,,!
Craig Silverstein, the compally'," director of tecJm%gy. "!fsorneone should ,'ome a/oil!!, and do a
bellel'job ,Iran liS, we Imow people will switch in a hear/beal. "

[)

Something tells me the hearts are beating a bit faster at Yahoo and Ooogle HQs today. Will Ooogle
renew its deal with Amazon? Will Bezos and Schmidt put a good face on it and call this a
partncrship'/ I havc no idea. but man, things are certainly getting interesting in this neck of the
woods. More after I talk with folks and get a second order view of the landscape.

(I'll also have a much more complete posting on A9, including a tour of its features and a
discussion of its strategic implications later tonight.)

ps.. for a tour of what's cool in A9: Click here.

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It can be a better solution for an end-user who is in touch with Amazon often inorder to
search for some product and get the results are mostly relevent to the products
A9 ,com lacks some usability and accessibility features. Search resu lts need to be
organized well for better access, now it seems little congested content Some of the
features are not compatible with some others browser(Opera). Amazon need to take
these bugs severely before end-users start going away.
Thanks'
Veeresh D.
http://drvereshgooglepages.com

http://battellemedia,com/archives/2004/04/news_ a9 _amazons_search~ortal_goes_live_re ...

8/26/2013

A-1317
Case 1:05-cv-08136-DC Document 1074-3 Filed in Valley John 4 of
NEWS: A9, Amazon's Search Portal, Goes Live: Reverberations Felt08/26/13 IPageBatt...5 Page 3 of 4

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~5, is an entrepreneur, journalist, professor, and author who has founded or co-founded scores
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8/26/2013

A-1319
Case 1:05-cv-08136-DC Document 1074-4

Filed 08/26/13 Page 1 of 6

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

ATTACHMENT

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

A-1320
Case 1:05-cv-08136-DC I John Battelle's Search Blog
Interview with A9's Manber up on B2.0 Document 1074-4 Filed 08/26/13 Page 2 of 6Page 1 of 5

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INTERVIEW WITH A9'S MANBER UP ON B2.0
BY!!l!!! -APRlL IS, 2004

o

I- Two1l10

STUMBlEUPON )

[oj

BUSINESS2.0 No need to repost it here. as my interview with Udi is up on Business2.com
without subscription walls (thanks 2.0!). Includes an intra which gives on
overview of the service and the implications. Good for those of you who don't want to wade
through my last two posts on the subject ... and gives a bit of insight into how Udi's mind works_
UPDATE: The link apparently is now behind reg, so the column is posted in extended entry.
(6/21/04)
]]>< ![CDATA[
WEB EXCLUSIVE
Can Amazon Unplug Google?
The online retailer is planning to change the way we navigate the Web. An exclusive interview
with Udi Manber, whose newly unveiled A9 engine just may drain the juice from the brightest light
in search.
By John Battelle, Dusiness2 .com, April 15,2004
Is Amazon (AMZN) taking on Google? Last fall the giant onlinc retailer announced that it was
launching a company foclised exclusively on search. Lest anyone miss the implications, Amazon
promptly rented an office far from its Seattle headquarters- in the epicenter of Silicon Valley,
nenr Stanford University. That's where both Ooogle and Yahoo (YHOO) were born.
Tapped to lead the startup was Udi Monber, Amazon's chief algorithms officer and Yahoo's former
chiefscientis!. Widely respected for his elegant approaches to intractable software problems,
Manber was a magnet for Silicon Valley talent. (Either injest or retaliation, Ooogle responded by
buying advertisements on its own search engine for the phrase O<Udi Manber"; type his name into
the search form and the top ad link offers job opportunities at Goosle.)
Amazon recently took lhe wraps off its initial public beta version of A9, and we got the first sneak
peek !t's easy to see why the new engine might set Ooogle and other seareh-drivcn companies on
edge: A9 is a credible step to ward making a search engine that knows you and ac ts as your agent
online.
By overlaying what you're looking for onto what you ' ve already found - and, ultimately, what
you've consumed - A9 aims for the holy grail of search and e-commerce. While others have tried
to create personalized interfaces, none hns worked so far. Users don ' t like to answer questionnaires
about what they like and what Ihey don't; often they lie. But Amazon already knows who you are
- or at least, what you buy With A9, the company can factor in whal you browse and search for
as well.
And the best part, tram Amazon's perspective, is that the more things you buy at Amazon, and the
more you browse with A9, the better the company will know you. Ideally, it's win-win - you get
beller results, Amazon gets more sales
Manber is the first to tell you he's nowhere near his goal of creating the perfect search engine. But
A9 - the name stands for the nine letters in the word "algorithm" - is a significant evolulion.
Blending powerful personalizalion features with clever interfoce tweaks and a truly useful toolbar,
A9 could well do Google one better lnterestillgly, it uses Google's search results - Amazon and
Goagle have a longstanding search deal- but builds on them wilh an elegant set offealures that,
taken together, make A9 seem like a new way to search.
In truth. Amazon and Google are speeding from two ends toward a very fertile middle ground
where commerce and search meet. When they get the re, they'll have formidable comp<,"y - AOL.
eBay (EBAY), Microsoft (MSFT), and Yahoo, to name a few. All of these companies have
millions of 10yo I users and business models built on eonnectin~ those who seek with Ihose who sell
And there's an obvious question · Does Amazon honestly think Google will 5tanJ by while Mallber
creates a better way to search"

http://battellemeciia.com/archives/2004/04/interview_with_ a9s_ manber_up_on_ b20.php

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A-1321
Case 1:05-cv-08136-DC I John Battelle's Search Blog
Interview with A9's Manber up on B2.0 Document 1074-4 Filed 08/26/13 Page 3 of 6 Page 2 of 5
It's clear he's just getting started. A native ofiSfael, Manber has an almost elfish grin and the merry
intensity born of someone who clearly knows more than he's allowed 10 tell. John Battelle asked
him a lot of questions anyway.
Walk me through what's different about A9 as a search site
When people come to A9.com, they have the option to install a browser toalbar and register
through Amazon's regular registration process. If you're already an Amazon customer, the site

automatically recognizes you. If not, you don't have to register, but if you do, you get the
personalized features, and if you install the toolbar. you get even better sClVices.
As to what is new, the most obvious feature is your personal search history - which is integrated
into your entire search experience. So your entire search history is avai lable to you, and with the
tool bar, that includes all your searches across any search site, as well as all your browsing on the
Web. Also, all the interface columns on the site - personal history, or related books, or the Web
search column itself- are adjustable and the site remembers the settings the next time you come
(the default is that Web search only is opened). I'm very proud of our taolbar's diary fcature that
allows you to annotate t!8ch site you visit. And we have integrated Amazon's "search inside the

book" feature into the engine, so now all your results include excerpts from related books.
I understand much of the personalization is made possible by what you call a "history server."
What exactly is that?
The history server stores - on our servers - your history of interaction with us for the purpose of
bringing that back to you in a very convenient way. Whenever you come to the site, we can show
you what you searched for in the past in a very easy-to-organize fashion. If you want to hide some
ofthat, you can opt out at any time. If you install the toolbar, then all your Web browsing, as well
as all your searching, is stored as well. And we are working on many different ways to improve
that.
So there is a massive repository of data, held on an Amazon server, that tracks where T've been on
the Web. Isn't that something of a privacy nightmare?
Our privacy policy is very clear on this subject- we will never share this data with third parties.
Also, having the data of what users search for or where they go is not a new concept. Any site that
requires registration - AOL or MSN, for example - already has this infonnation. What is new is
that we're taking this infonnation and giving it back to the users to make their search experience
better and more useful. It gives them more power.
Will A9 ever integrate all the infonnation Amazon already knows about its customers - what they
buy, browse, or search - into creating better search results? If! happen to buy a lot of books on
jungle cats, will my A9 search results know to serve me the cat· related search results for the query
"jaguar" ahead of the car or the football team results?
We have no plans to do this at the moment. It is very hard to do wdl. If we do this, we want to
make sure to do it in a way that makes the search experience work better for users. But again, I
can't predict the future. The whole goal here is to get better customer experience. Whatever I can
find to get better customer experience, I'll do it.
How can we sqnare the perception that A9 was going to be a commerce engine with the reality of
the site as it debuted, which feels much more like the evolution of a pure search site like Google?
Will a shopping comparison engine be added soon?
I can't answer that. As an engineer I don't like to talk about things that I haven't yet built. A9 is a
way to experiment with several leatures that hclp our users. It's a way to bring more users in, and
it's a way to see the feedback they give liS using those features. We will later use that feedback to
improve search both at Amazon and other sites we partner with. It is clear that search is an integral
part of any e-commerce site. It' s also clear that search is not a solved problem for e-commerce, or
beyond e-commcrcc.
What happens if A9 starts to steal market share lrom Google?
We don't talk about other oompanies, and to be honest, we don' t even think too much about
competitors. We lry to concentrate completely on the users. I don ' t look at it as who we compete

with but rather how much something helps the users.
You've said search is not solved. What are the problems that need to be addressed?
In general, the main problem of search is very simple: Too often people do not get the results they
need. Solving that is hard. We cannot read people's minds, but we can do much better anticipating
their needs and making the process much easier for them
What might we expect from A9 in the future?
A9 is going to roll out features over time This is our first beta tesl- the result of a small team

working over a short amount of time We are growing the group as fast as we can. We have a large
queue of very good ideas with the purpose of making search beuer. Our long-term goal is to
improve search. We hope to invent new search technologies and usc them on Amazon.com and
other partner sites_
John

B~tt~lIe

is a visiting professor at the University of California at Berkeley and author ofuThe

Search" (Ponfolio, late 2004).
Find this anicle at hUp://www business2 comib2isllbscriberslaniclesll, 17863,61 1251 ,OO.html

http://battellemedia.com/archives/2004104/interview_with_ a9s_ manber_ up_on_ b20.php

8126/2013

A-1322
Case 1:05-cv-08136-DC I John Battelle's Search Blog
Interview with A9's Manber up on B2.0 Document 1074-4 Filed 08/26/13 Page 4 of 6 Page 3 of5
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Case 1:05-cv-08136-DC I John Battelle's Search Blog
Interview with A9's Manber up on B2.0 Document 1074-4 Filed 08/26/13 Page 5 of 6 Page 4 of5

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Interview with A9's Manber up on B2.0 Document 1074-4 Filed 08/26/13 Page 6 of 6 Page 5 of 5

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is an entrepreneur, journalist, professor. and author who has founded or co-founded scores

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8/26/2013

A-1325
Case 1:05-cv-08136-DC Document 1074-5

Filed 08/26/13 Page 1 of 4

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

ATTACHMENT

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

A-1326
Case 1:05-cv-08136-DC Document 1074-5 Filed Web to a Page 2 of
The New York Times> Technology> Amazon to Take Searches on 08/26/13 New Depth 4 Page 1 of 3

She Nelli flock _mel

nytlmes.com

': ...

STEVE CARELL
! TO r~1

COLLETTE
;1'

Septem ber IS, 2004

Amazon to Take Searches on Web to aNew Depth
By JOHN MARKOFF

PI

ALO ALTO, Calif., Sept. 14 - Amazon.com, the e-commerce giant, plans to take aim at the
. . . Internet search king Google with an advanced technology that the company says will take
searches beyond mere retrieval of Web pages to let users more fully manage the information they find.

A9.com, a start-up owned by Amazon, said in a briefing here on Tuesday that it planned to make the
new version of its search service, named A9.com, available Tuesday evening. The service will offer
users the ability to store and edit bookmarks on an A9.com central server computer, keep track of each
link clicked on previous visits to a Web page, and even make personal "diary" notes on those pages for
viewing on subsequent visits.
"In a sense, this is a search engine with memory," said Udi Manber, a computer scientist who was a
pioneer in online information retrieval and worked at Yahoo before moving to Amazon two years ago.
Mr. Manber created the original A9 search service, which is based in part on search results from
Google. He also led the development of Amazon's "search inside the book" project, which lets visitors
to the Amazon.com and A9.com Web sites search the complete contents of more than 100,000 books
the company has digitally scanned.
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.
Google, which had a widely watched public stock offering last month, is still the dominant provider of
search results with approximately 250 million daily searches. But Yahoo and Microsoft have become
direct competitors, and a number of start-up companies are busy developing search technologies.
Google executives did not return calls asking for comment.
Amazon is also offering a dialog box that will enable customers on the Amazon.com shopping site to
use A9 service to perform Web searches. Company executives say they have no immediate plans to
compete head-on with Google and the other search providers. But analysts say the company is aware
that search engines are often the starting point for online shopping and cannot help but see broader
business opportunities for expanding more fully into online searching.
"They've downplayed the idea that they're going into search," said Danny Sullivan, editor of Search
Engine Watch, an industry Web site. "They say, 'we're not competing.' But at the same time you have
to wonder why they're doing it, and it's likely they're doing it because they see some potential in
search."

http://www.nytimes.com/2004/09/15/technology115search.html?J=2&pagewanted=print&... 8/26/2013

A-1327
Case 1:05-cv-08136-DC Document 1074-5 Filed Web to a Page 3 of
The New York Times> Technology> Amazon to Take Searches on 08/26/13 New Depth 4 Page 2 of 3
Amazon quietly established A9last year as a subsidiary in a large office building here. The start-up
has been offering a search demonstration page, which has so far been limited to the ability to record a
history of Web searches.
The new service goes much further, adding the ability to organize and retrieve past searches. The idea
is to make searching more useful by making it easier to remember where a Web browser has gone
before.
"The ability to search through your own history of personal Web searches is insanely powerful," said
John Battelle, a writer and consultant who is the organizer of the Web 2.0 conference to be in San
Francisco next month. "This is a big deal," Mr. Battelle said. "But the question is will people get the
habit of using it?"
The new A9 search page permits users to search the Web and simultaneously retrieve related
information from Google's search results and its image search service, reference material from the
GuruNet service and additional information from the Internet Movie Database.
A9 executives said that the new version of the service was simply a first release and that the company
had extensive plans for adding new capabilities.
"This is just version 1.0," said Mr. Manber. "There is a lot more to come."
But Mr. Manber, who began working on information retrieval in the early 1990's as a faculty member
at the University of Arizona, was reticent to discuss whether A9 would become a direct competitor to
Google.
A9 is currently using Google search results and displaying the syndicated Google Adwords
advertisements. The two companies share revenue from the advertisements. Amazon also has its own
independent technology for indexing the Web, as a result of its purchase in 1999 of Alexa, a search
company founded by the information retrieval specialist Brewster Kahle. The new version of A9 offers
some Web traffic information derived from Alexa, but not search results.
Initially, A9 will focus on managing information like bookmarks and search history, Mr. Manber said.
"It's not just about search," he said. "It's about managing your information."
The A9 service will include a Web browser tool bar that has several innovative features, like the
ability to create instant lists from individual Web pages and then use the lists to move among those
pages.
Moreover, it will offer a home page giving users the ability to edit and move Web links easily for later
retrieval.
The A9 site will also offer a "discovery" feature that gives Internet browsers suggestions on Web sites
that they may find interesting, based on their searches - a feature similar to the product
recommendation features offered on Amazon.
Mr. Manber said that A9 had no current plans to include paid ads in search research or to give a
preference to products sold on Amazon. But he also said that he could not comment on future plans,
except to say that A9 did have plans for new search technologies that would generate revenue.

http://www.nytimes.com/2004/09115/teclmologyI15search.html?J=2&pagewanted=print&... 8/26/2013

A-1328
Case 1:05-cv-08136-DC Document 1074-5 Filed Web to a Page 4 of
The New York Times > Technology> Amazon to Take Searches on 08/26/13New Depth 4 Page 3 of3
He stressed that the evolution ofInternet search capabilities was still in its earliest stages. "We're in the
Wright brothers phase of search technology," he said.
A9 executives said they were acutely aware of potential privacy concerns raised by the personalized
nature of the service and said they were doing a variety of things to address the issue.
There will be a version of the A9 service that will offer anonymous searches, for example, Mr. Manber
said. Moreover, it will be possible to turn off the history feature, remove information from an
individual history list and even entirely clear the history results that are stored on the A9 server, he
said.
"The new thing here is not that this information is being collected," he said, but rather that A9 is
actually letting Web users have access to their browsing histories for their own purposes.
Copyright 2004 The New York Times Company

I Home I Privacy PoliCY I Search I Corrections I ~ I ~ I Back to Top

http://www.nytimes.com/2004/09I1S/technologyI1Ssearch.html?J=2&pagewanted=print&... 8/26/2013

A-1329
Case 1:05-cv-08136-DC Document 1074-6

Filed 08/26/13 Page 1 of 4

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

ATTACHMENT

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

A-1330
Case 1:05-cv-08136-DC Document 1074-6 Filed (#SEW)
Amazon's A9 Launches Visual Yellow Pages - Search Engine Watch08/26/13 Page 2 of 4 Page 10f3
ClickZ (hllp:/lwww.clickz com)

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Amazon's A9 Launches Visual Yellow Pages
Chris Sherman (http:/ /searchenginewatch.com/author/191O/chris-sherman), January 26, 20 05

• page One power i.s a custom link building company localed in Boise, Idaho. (http://wv.rN.pagaonepower,comnutm_source=induslry+page&utm_medlum- cpc&utm_campaign=SEW+industry+paga+)

A9's (htlp:lla9,coml) new nationwide yellow pages directory comes with a twist-thumbnail images of business storefronts that let you take a virtual walk through
the streets of 10 major U.S, cities,
A9's new offering wor1<s much like other online yellow page directories, You can search by business name or category, and get a list of results that are near your
current location, with each identified with an icon on a map, Click on a listing for a business, though, and the results are very different than what you see with
other services.
In addition to basic business information, you also see a photograph of the business storefront. Beneath this is a series of thumbnail images showing other
buildings on either side of the business, Click any of these thumbnails and the main Image changes as well. By clicking sequential images you're effectively
"moving" along the street, seeing businesses just as you would if you were walking down the street.
"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
thera," said Udl Manber, president ot 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 geot8g thenn 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 thejr rounds through cities at normal speed, "We can do that at a very large scale very effICiently and
at very low cost," said Manber,
The system is similar to the building facade photographs available through France Telecom's Yellow Pages site, Pages Jaunes (http://photos,pagesJaunes,frl) that
I wrote about last year (http://searchenginewatch ,comlsearchdaylartide.phpl3309641). While it took professional photographers years to assemble the images
used in the Pages Jaunes directory, it took A9 only a "few weeks" to capture the 20 million plus Images used in its yellow pages system, according to Manber.
A9's yellow pages also lists businesses Immediately adjacent to the one you're viewing, as well as those on the opposite side of the street, showing what's located
on a full city block, While similar to Metrobot's (http://searchenginewatch,com/searchdaylarticle,php/3298971)grid-basedsearchresults,it's sparser, allowing you
to see at a glance allot the businesses nearby,
A9 will allow business owners to modify listings and send additi onal content for inclusion in business listings, such as interior photographs, links to web sites and
so on, for no charge,
To do so, use the Update Business Info button on the right-hand side of your listing in the Yellow Pages. At the moment, anyone can claim to be the business
owner -- actual verification looks to be something that might come over time, The A9 help pages (htlp:llwww.amazon.com/gplyp/bizediVhelp-bizedit.html/) explain
more
This is a clear show over the bow of Yahoo, which rolled out enhanced business listings (http://searchenginewatch.com/searchday/article,php/3444861) for Yahoo
Locallasl year, Yahoo charges $9 ,95 per month for enhanced listings.
A particularly cool feature allows you to call a business simply by clicking a button on a web page Enter your phone number, click the button, and the system will
automatically initiate a call between your phone and the business' phone.
Want to use the new service? Tha best way Is to go to Amazon itself, where it has become a tabbed service, From the new Yellow Pages
(http://www.amazon.com/gp/browse.html/ref=sd_ str_ ypl?node=3999141) area , you can enter a location in the main box and what you 're searching for in the
search box on the lett-hand side of the screen, to get resu lts
Oddly, there's no button for it jf yoo go to the A9 home page (http://a9 corn/) on the righi-ha nd side, where other buttons for History, Bookmar1<s, Discover and
Diary are located
Instead, over there, you have to perform a search -- say for dentists (http://a9.com/dentists) -- then select the Yellow Pages button that appears with others. Now
you can see Yellow Pages results, though to localize them, you have to enter an address, city and slate or US zip code,

http://searchenginewatch,com/article/20670 181Amazons-A9-Launches-Visual-Yellow-Pages 8/26/2013

A-1331
Case 1:05-cv-08136-DC Document 1074-6 Filed (#SEW)
Amazon's A9 Launches Visual Yellow Pages - Search Engine Watch08/26/13 Page 3 of 4 Page 2 of 3
Altematively, you can bookmark (http://a9.comlthe?a=oyp) this page. That generates an all-Yellow Pages results page matching the word "the." Change to the
query you want to do, change from the default location that appears to what you want, and localized results will be returned .
Hopefully, we'll see a betler interface into the system emerge at A9. The ability to enter a location and terms before conducting a search -- and to conduct only a
Yellow Pages search -- would be welcome. Even going to the advanced search page (http://a9.coml-lsearchladvSearch), nothing like this is currently available.
Want to learn more about the service direct from A9? A How We Did It (hltp:lla9.coml·lcompanylYeliowPages.jsp) page provides video clips of the mapping, plus
a map of cities covered.
Like other Amazon services, A9 yellow pages listings also indude reviews, ratings, lists and other user-contributed content. Manber says that at some point the
system will also add recommendations to search results, similar to the book, music and other recommendations that you get at Amazon.com.
A9 plans to aggressively continue ~s photography of U.S. cities, adding photographs on virtually a continual basis going forward. A number of cities beyond those
included at launch have already been photographed and will go live on the service very soon, once quality assurance has been completed.
A9's entry into the online yellow pages space is sure to quicken both the pace of development and the competitive jostling among all of the players in both online
yellow pages and local search listings. For something that was rolled out so quickly, it's already an impressive and useful service that is bound to improve rapidly.
Manber declined to talk about any specific future developments, but acknowledged that continued development of the online yellow pages was a high priority for
A9.
It's increasingly looking like 2005 might finally be the year when local search grows up and fulfills the promise that's been talked about for years.

Want to disCl.Jss or comment on this story? Join the A9 Joins Online Yellow Pages Fray (hltp:llforums.searchenginewatch.comlforumlshowthread.php?t=3944)
discussion in the Search Engine Watch forums.
Our weekly roundup of search engine forum pos/ings will appear in Monday'S issue of SearchDay.

Search Headlines
NOTE: Article links often change. In case of a bad link, use the publication's search facility, which most have, and search for the headline.

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Technology Revtew

(hltp:llwww.technologyreview.com/articiesI05/01 Iwolwo_doliarhide012705.asp?trk=top) () Jan 27 2005 2 :58PM GMT

http://searchenginewatch.com/article/20670 18/Amazons-A9-Launches-Visual-Yellow-Pages 8/26/2013

A-1332
Case 1:05-cv-08136-DC Document 1074-6 Filed (#SEW)
Amazon's A9 Launches Visual Yellow Pages - Search Engine Watch08/26/13 Page 4 of 4 Page 3 of3

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http://searchenginewatch.com/article/20670 18/Amazons-A9-Launches-Visual-Yellow-Pages 8/26/2013

A-1333
Case 1:05-cv-08136-DC Document 1074-7

Filed 08/26/13 Page 1 of 4

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

ATTACHMENT

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

A-1334
Case 1:05-cv-08136-DC Document
Google hires Amazon's search chief - seattlepi.com 1074-7

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Published 10:00 pm, Tuesday,

Febru~IIY

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7, 2006

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In a blow to Amazon,com Inc,'s efforts to make a name
for itself in search, the head of its online search effort is
jumping ship to work for Google Inc.
Udi Manber, who has been chief executive of Amazon's
A9 subsidial)', will be a vice president of engineering at
Google, spokeswoman Lynn Fox said Tuesday. She
declined to provide more details, including when he
will start and what specifically he will work on.

Effective immediately, Manber is being replaced at A9 by David Tennenhouse, previously a vice
president and director of research at Intel Corp. Amaron spokesman Craig Berman said Manber
would be at A9 until Friday.
"It could set back their efforts, but A9 was more of a trial to hedge their bets and have a presence
in there," said Safa Rashtchy, a senior Internet analyst for Piper Jaffray & Co. who estimates that
10 percent of Amaron's tech spending centers on search. "I don't think they will give up on it that
easily, but it hasn't produced any major advantages for Amazon and it is still experimental."

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Google is by far the leader in the search-engine field, commanding 46.3 percent of the U.S.
market according to the latest November data from NielsenjNetRatings. By comparison,
Amazon's A9 ranked 29th, with 0.1 percent of the market.
The effect that Google's feat will have upon Amazon's future snccess in search is unknown. So
far, the success of the Monntain View, Calif.-based Google has already pressured many
e-eommerce companies to expand their technology investments, and Amazon is no exception.
Amazon's main tech investments are on platform, search, Web services and digital, but it is
especially hard to discern where the secretive Seattle company's tech spending is focused: on
playing catch-up or innovation.
In an e-commerce report, Merrill Lynch analyst Justin Post wrote that he expects Amazon
technology investment to reach $601 million in 2006, a 33 percent jump that is "well ahead of
our estimated revenue growth of 20 percent, but a deceleration from 2005 spending growth of
62 percent. II
Amazon's spending on technology, product development, and research and development has
risen from $208 million in 2003 to $406 million in 2005, according to Post's report.
Whether those investments will turn into profits over time remains to be seen, as does what
Google expects from its future performance: Unlike most tech companies, Coogle refuses to
provide earnings estimates for financial analysts.
That makes it harder for them to chart the company's growth -- which led to the pummeling of
the company's stock last Thursday when it failed to meet their admittedly high expectations.
Manuer's defection is the latest coup for Google, a formidable foe for many technology industIy
titans. In September, the company snagged Internet pioneer Vinton Cerffrom MCI Inc. Also last

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http://www.seattlepi.com/business/article/Googlc-hircs-Amazon-s-search-chief-1195185 .php 8/26/2013

A-1335
Case 1:05-cv-08136-DC Document
Google hires Amazon's search chief - seattlepi.com 1074-7

Filed 08/26/13 Page 3 of 4 Page 2 of3

fall, Microsoft Corp. and Google waged a court battle over Microsoft executive Kai-Fu Lee's
decision to resign from Microsoft to oversee Google's efforts to open a research center in China.
That case has since been settled.

~""""r-II'IJl.
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A blillon·dollar daily shot In th.
ann for the American economy

ii~~~~ ExxonMobii Perspectives Blog

Google's other recent notable hires including longtime Microsoft executive Mark Lucovsky and
former eBay Inc. executive Louis Monier, who was also a key player in the development of the
first search engine, AltaVista.
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http://www.seattlepi.com/business/article/Google-hires-Amazon-s-search-chief-1195185.php 8/26/2013

A-1336
Case 1:05-cv-08136-DC Document
Google hires Amazon's search chief - seattlepi.com 1074-7

Filed 08/26/13 Page 4 of 4 Page 3 of3

,

T f•• d., Follow UI on TwfU.r' Fecebook, E-mail naws ' .~enJ Corrections
, Send UI ~p. , Job oponlng., About the p-, , He"",t Corp, , Terms 0' use' PrIvacy p"icy I Ycu: Collomla P

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http://www.seattlepi.com/business/article/Google-hires-Amazon-s-search-chief-1195185 .php 8/2612013

A-1337
Case 1:05-cv-08136-DC Document 1074-8

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,

Case No. 05 CV 8136-DC

Plaintiffs,
v.
Google Inc.,
Defendant.

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

ATTACHMENT

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

A-1338
Case 1:05-cv-08136-DC Document 1074-8 Filed 08/26/13 announc...
Google Announces New Mapping Innovations at Where 2.0 Conference - News Page 2 of 3 Page 1 of2

News from Google
Subscribe

Google Announces New Mapping
Innovations at Where 2.0 Conference
Announcement
May 29,2007
This morning at the Where 2.0 conference in San Jose, John Hanke, Director of Google Earth
& Maps, announced new innovations for Google Maps that offer a whole new perspective on
search: Street View andMapplets. Available on Google Maps at maps.google.com, Street View
and Mapplets further Google's commitment to provide users with the mostinnovative maps
available online and developers with new tools for creating and sharing geographic content.
Street View is a new feature of Google Maps that enables users to view and navigate within
360 degree street level imagery of various cities inthe US. Street View provides users with a
rich, immersive browsing experience directly in Google Maps, enabling greater understanding
of a specific location or area. Street View imagery will initially be available for maps of the San
Francisco Bay Area, New York, Las Vegas, Denver and Miami, and will soon expand to other
metropolitan areas. By clicking on the "Street View" button in Google Maps, users can navigate
street level, panoramic imagery. With Street View users can virtuallywalk the streets of a city,
check out a restaurant before arriving, and even zoom in on bus stops and street signs to
make travel plans.
Google also announced the launch of Mapplets, a powerful new tool for developers and
consumers alike. Mapplets enables third party developers to create mini applications that can
be displayed on Google Maps, much like Google Gadgets are displayed on iGoogle. These
Mapplets contain a variety of information , from housing listings to crime data, and tools like
distance measurement. Users can select from a wide range of Google and third party Mapplets
to display on the Map, essentially creating their own "mashup of mashups" directly on the

http ://googlepress.blogspot.coml2007/05/goog1e-announces-new-mapping_29 .html

8/26/2013

A-1339
Case 1:05-cv-08136-DC Document 1074-8 Filed 08/26/13 announe...
Google Announces New Mapping Innovations at Where 2.0 Conference - NewsPage 3 of 3 Page 2 of2

Google Maps site, while still enjoying the built-in functionality of Google Maps, such as local
search and driving directions. A number of our partners, includingWeatherBug, Booking.com
and Platial have already created Mapplets. This feature is available at
maps.google.com/preview.

http://googlepress.blogspot.com/2007/05/goog1e-announces-new-mapping_29.html

8/26/2013

A-1340
Case 1:05-cv-08136-DC Document 1075

Filed 08/26/13 Page 1 of 4

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

Civil Action No. 05 CV 8136 (DC)

v.
GOOGLE INC.,
Defendant.
DECLARATION OF JOSEPH C. GRATZ IN OPPOSITION TO PLAINTIFFS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT

A-1341
Case 1:05-cv-08136-DC Document 1075

Filed 08/26/13 Page 2 of 4

I, Joseph C. Gratz, hereby declare under penalty of perjury:
1.

I am an attorney duly admitted to practice law in the State of California and in this

Court. I am a member of Durie Tangri LLP, attorneys for Defendant Google Inc. in the abovecaptioned civil action. I submit this declaration in opposition to Plaintiffs’ Motion for Partial
Summary Judgment. I make this declaration based on personal knowledge of the facts and
circumstances set forth herein.
2.

Each of the web page captures attached hereto was captured on August 19, 2013.

3.

Attached hereto as Exhibit 1 is a true and correct copy of a portion of the web

page resulting for a search on the Library of Congress catalog at http://catalog.loc.gov for the
query “500 Pearl Street.”
4.

Attached hereto as Exhibit 2 is a true and correct copy of a portion of the web

page resulting for a search on https://books.google.com for the query “500 Pearl Street.”
5.

Attached hereto as Exhibit 3 is a true and correct copy of a 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. This book is in the Google Books Partner Program, and
Google displays full pages at the request of its publisher, Fairleigh Dickinson University Press.
Because it is in the Partner Program, more than “snippets” of text are displayed.
6.

Attached hereto as Exhibit 4 is a true and correct copy of a portion of the web

page resulting for a search on https://books.google.com for the query “Hong Kee Kang.”
7.

Attached hereto as Exhibit 5 is a true and correct copy of a portion of the web

page that results from clicking on the result Chinese America, History and Perspectives in
Exhibit 4.
8.

Attached hereto as Exhibit 6 is a true and correct copy of the web page located at

1

A-1342
Case 1:05-cv-08136-DC Document 1075

Filed 08/26/13 Page 3 of 4

http://www.amazon.com/gp/offer-listing/B002H9DITW/, which offers for sale used copies of the
book appearing in Exhibit 5.
9.

Attached hereto as Exhibit 7 is a true and correct copy of Marc Egnal, Evolution

of the Novel in the United States: The Statistical Evidence, 37:2 SOC. SCI. HIST. 231 (2013).
10.

Attached hereto as Exhibit 8 is a true and correct copy of Jean M. Twenge et al.,

Changes in Pronoun Use in American Books and the Rise of Individualism, 1960-2008, 44 J.
CROSS-CULTURAL PSYCH. 406 (2013).
11.

Attached hereto as Exhibit 8 is a true and correct copy of the 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”. It is available at
http://judiciary.house.gov/hearings/pdf/aiken090910.pdf.
12.

Attached as Exhibit 9 is a true and correct copy of excerpted pages of the

transcript of the deposition of Paul Aiken taken herein on April 19, 2012.
13.

Attached as Exhibit 10 is a true and correct copy of excerpted pages of the

transcript of the deposition of Betty Miles taken herein on January 4, 2012.
14.

Attached as Exhibit 11 is a true and correct copy of excerpted pages 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.
15.

Attached as Exhibit 12 is a true and correct copy of excerpted pages of the

transcript of the deposition of Jim Bouton taken herein on December 15, 2011.
16.

Attached as Exhibit 13 is a true and correct copy of excerpted pages of the

2

A-1343
Case 1:05-cv-08136-DC Document 1075

Filed 08/26/13 Page 4 of 4

transcript of the deposition of Joseph Goulden taken herein on January 6, 2012.
17.

Attached as Exhibit 14 is a true and correct copy of Exhibit 6 to the deposition of

Paul Aiken taken herein on April 19, 2012.
18.

Attached as Exhibit 15 is a true and correct copy of the transcript of the

deposition of Daniel Gervais taken herein on June 12, 2012.
19.

Attached as Exhibit 16 is a true and correct copy of the transcript of the

deposition of Benjamin G. Edelman taken herein on June 14, 2012.
20.

Attached as Exhibit 17 is a true and correct copy of Exhibit 5 to the deposition of

Jim Bouton taken herein on December 15, 2011.
21.

Attached as Exhibit 18 is a true and correct copy of Exhibit 2 to the deposition of

Betty Miles taken herein on January 4, 2012.
22.

Attached as Exhibit 19 is a true and correct copy of Exhibit 16 to the deposition of

Benjamin G. Edelman taken herein on June 14, 2012.
23.

Attached as Exhibit 20 is a true and correct copy of excerpted pages of the

transcript of the deposition of Judith A. Chevalier taken herein on June 8, 2012.
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed on this 26th day of August, 2013, at San Francisco, California.

/s/ Joseph C. Gratz
Joseph C. Gratz

3

A-1344
Case 1:05-cv-08136-DC Document 1075-1

Filed 08/26/13 Page 1 of 2

EXHIBIT 1

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A-1345
Filed 08/26/13 Page 2 of 2

A-1346
Case 1:05-cv-08136-DC Document 1075-2

Filed 08/26/13 Page 1 of 2

EXHIBIT 2

A-1347

Coogle

Case 1:05-cv-08136-DC Document 1075-2
"500 reor1 Street"

Filed 08/26/13 Page 2 of 2

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Case 1:05-cv-08136-DC Document 1075-4

Filed 08/26/13 Page 1 of 2

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Case 1:05-cv-08136-DC Document 1075-5

Filed 08/26/13 Page 1 of 2

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A-1354
Case 1:05-cv-08136-DC Document 1075-6

Filed 08/26/13 Page 1 of 2

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Case 1:05-cv-08136-DC Document 1075-6

Filed 08/26/13 Page 2 of 2

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A-1356
Case 1:05-cv-08136-DC Document 1075-7

Filed 08/26/13 Page 1 of 25

EXHIBIT 7

A-1357
Case 1:05-cv-08136-DC Document 1075-7

Filed 08/26/13 Page 2 of 25

Marc Egnal

Evolution of the Novel in the United States
The Statistical Evidence

This article examines the evolution of the novel in the United States using a remarkable
new source, the Ngram database. This database, which spans several centuries, draws
on the 15 million books that Google has scanned. It allows researchers to look at yearto-year fluctuations in the use of particular words. Using one of the available filters,
the article is based on English-language books published in the United States between
1800 and 2008. But making sense of these data requires a framework. That framework
is provided by the four periods that emerge from much recent writing on the novel. Four
epochs—the sentimental era (1789–1860), the genteel era (1860–1915), the modern
era (1915–60), and the postmodern era (1960–)—define the evolution of the novel
and, more broadly, changes in American society and values. The article argues that a
study of key words drawn from the Ngram database confirms the existence of these periods and deepens our understanding of them.

Ever since the first critical works appeared in the early US Republic,
observers have proposed a variety of approaches to understanding the evolution of American literature. New points of view, new novels, and new bodies
of evidence have led scholars repeatedly to refine or completely recast their
interpretations. A database drawn from the more than 15 million books that
Google has scanned offers just such an opportunity. This article argues that
this source of information, called the Ngram database, clarifies and deepens
the analysis of US novels. But databases never speak for themselves. They
must be examined in the context of interpretive frameworks. This article
Social Science History 37:2 (Summer 2013)
DOI 10.1215/01455532-2074429
© 2013 by Social Science History Association

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232 Social Science History

begins by exploring recent overviews of American literature. The article next
discusses the nature of the Ngram database. It then suggests how these data
shed light on American fiction from 1800 to the present.

The New Synthesis of American Literature
Quietly and without much fanfare, a new synthesis has reshaped analysis
of American literature. This overview, which replaces older interpretations,
provides a crucial background for understanding the Ngram data.1 At first
glance, the assertion that there is a current synthesis seems questionable. The
emphasis in recent overviews has been on uncertainty, conflicting explanations, and multiple viewpoints. In his introduction to the seven-volume Cambridge History of American Literature, the editor, Sacvan Bercovitch (1994),
underscores the demise of older patterns of analysis. “For this generation
of critics and scholars,” he writes, “American literary history is no longer
the history of a certain, agreed-upon group of American masterworks. Nor
is it any longer based upon a certain, agreed-upon historical perspective on
American writing.” Bercovitch (ibid.: 2) continues, pointing to the diversity
of recent viewpoints, “In our times, in short, the study of American literary
history defines itself in the plural, through volatile focal points of a multifaceted scholarly, critical, and pedagogic enterprise.” The single-volume,
multiauthored Columbia History of the American Novel (Elliott 1991) echoes
these cautionary themes. Recent discussions of the “canon”—the works that
all scholars should read and teach—also highlight diversity, conflict, and the
questioning of older authorities (ibid.: ix–xviii; Alberti 1995).
Yet all is not chaos. What most recent overviews have in common is an
emphasis on periods, and not just any set but rather four particular epochs
that define the evolution of US literature. In the introduction to the Columbia History of the American Novel, the editor, Emory Elliott (1991: xiv), notes:
“There is clearly a chronological progression in the book with four historically organized sections introduced by a specialist in each period.” The four
are “Beginnings to Mid-Nineteenth Century,” “The Late Nineteenth Century,” “The Early Twentieth Century,” and “The Late Twentieth Century”
(ibid.). With variations in name, these four periods define the material in the
Cambridge History of American Literature as well. The first era is the least
likely to bear a formal name. But the second has been called the genteel era,
the third the modern era, and the most recent the postmodern era. The newly

A-1359
Case 1:05-cv-08136-DC Document 1075-7

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Evolution of the Novel 233

published Cambridge History of the American Novel (Cassuto 2011) highlights the same four divisions. It begins with part 1, “Inventing the American Novel,” which takes the story up to the Civil War. Next comes “Realism, Protest, Accommodation,” which carries this overview to World War I.
The third section, “Modernism and Beyond,” examines writing through the
1960s. The final section, “Contemporary Formations,” opens appropriately
with the essay “Postmodern Novels.”
This fourfold division is more than a useful set of labels. It ties literature
to the evolution of American society in profound ways. The four periods track
changes in the United States, as the nation metamorphosed from an overwhelmingly rural society (in the first era) to one at least initially dominated
by small towns (in the genteel era); then to one where vibrant cities set the
tone (in the modern era); and further to a time characterized by megalopolises, sprawling entities often with decaying cores (in the postmodern era).
Similarly, this periodization embodies far-reaching shifts in values, beginning with an initial concern for womanly virtue (in the first era); evolving
into the elaborate codes that marked genteel America; continuing with a less
rigid set of moral guidelines while gender and racial hierarchies remained (in
the modern era); and concluding with a period in which hallowed assumptions about race, gender, and authority gradually crumbled (in the postmodern era). The four-period synthesis suggests no judgment about the canon,
the value of straight or queer literature, colonial or postcolonial attitudes, or
male or female roles. In that sense it is very much in keeping with the recent,
more open sensibility. But it does assert that any reading of literature should
be set securely in the context of these epochs and the evolution of US society.
This article reinforces the current synthesis. The material presented
below makes clear that this fourfold division, with its deep roots in American society and culture, provides a valuable framework for literary analysis.

The Ngram Database
The Ngram database sheds light on those eras. But before any source, and
particularly one as far-ranging as this compilation, can be used, there is a
need to consider its nature, strengths, and weaknesses. In 2004 engineers
at Google began making digital copies of books. It is a task of Brobdingnagian proportions. Since the invention of the printing press, about 129 million books have been published; Google has now digitized over 15 million of

A-1360
Case 1:05-cv-08136-DC Document 1075-7

Filed 08/26/13 Page 5 of 25

234 Social Science History

them. The project encompasses, along with English books, works in seven
other languages. Most of the publications have appeared since 1800. Englishlanguage authors, for example, published only 500,000 works between 1500
and 1800.
From the volumes scanned, covering the years from 1500 to 2008,
Google selected 5.2 million books as the foundation of the Ngram database.
The researchers chose this group partly based on the quality of the optical character recognition (OCR) results. They also selected works with the
most complete metadata, including date, place, and language of publication.
According to a tabulation undertaken in 2010, the largest portion (67 percent) of the more than 500 billion words in this compilation are in English,
with smaller collections in French (8 percent), Spanish (8 percent), German
(7 percent), Russian (7 percent), Chinese (2 percent), and Hebrew (< 1 percent). Italian was added to the database after these numbers were computed
(Michel et al. 2010, 2011).
Anyone visiting the site (ngrams.googlelabs.com) to run Englishlanguage word searches finds a short and not entirely satisfactory list of possible filters. The one used in this article is American English. It limits the
search to English-language books published in the United States. These
works, however, can be of many sorts, including legal or technical documents, reprints of foreign books, sermons, political tracts, and American fiction. Each book is considered only once, so obscure texts are weighted as
heavily as best sellers. There are some virtues to dealing with this large basket of works, but before that question is tackled, the other filters for Englishlanguage books should be noted. The database can also be searched for
British English (works published in Great Britain), English Fiction (fictional
works in English without regard to place of publication), and English and
English One Million (both dealing with the broader selection of Englishlanguage books). Readers can also examine the smaller Ngram databases for
books in seven other languages.
Word searches generate graphs, such as the 17 presented in this article,
but what exactly is measured? The numbers on the left axis are percentages
indicating for each year the proportion of all words in the scanned books that
match the term selected. So if you search for the, a very common word, the
results show that in most years about 5 percent of all words (Google calls
them “unigrams”) are a match. More typical results are much lower. For
example, the use of sublime peaks early in the nineteenth century at about

A-1361
Case 1:05-cv-08136-DC Document 1075-7

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Evolution of the Novel 235

0.003 percent. So of every 100,000 words in books published in the 1810s,
3 of them are sublime (Cohen 2010; Google Books Ngram Viewer 2011; Hotz
2010).
Google allows users of the database to conduct a finer-grained analysis,
but that sorting must be done manually. For any word queried, Google provides a list of the books that include the term during a particular time period.
So for sublime in the American English database for the 10 years beginning
in January 1843, some 254 books are listed. All are published in the United
States, but roughly half are reprints of works first issued elsewhere, chiefly
in Britain. Some are literary works, for example, the stories of Edgar Allan
Poe and the novels of the Anglo-Irish novelist Maria Edgeworth. Many of
the volumes are reviews from the United States, such as the Knickerbocker
Review and the United States Democratic Review, or reprints of British publications, such as Punch and the Edinburgh Review. In sum, the Ngram American English database is a useful handbook for what Americans wrote, but it
is a better guide for what middle- class Americans were reading.2
This article examines, with an emphasis on novels, the four periods that
emerge from recent overviews of American literature. The analysis highlights the changing popularity of various words as revealed in the Ngram
American English database. The graphs presented begin in 1800, although
Google provides data for earlier years. But the paucity of books published
in the United States before the nineteenth century, and particularly the lack
of works written by Americans, make the data from the 1780s and 1790s (or
earlier) less reliable. For the four periods, I have used the labels and dates that
made the best sense to me. Some studies posit the same divisions, but others
might move the termini 10 or even 15 years in one direction or another. Since
the underlying graph is always presented, the precise dating is less important
than the overall trend line.

Sentimental Era, 1789–1860
During the sentimental era the American middle class, which had first
emerged as a self- conscious group in the mid- eighteenth century, came to
dominate society and shape its values. Like the other epochs, the sentimental
era was a period of great change, but its unity came from the celebration of
emotions and a determination to encourage new “proper” and pious patterns
of behavior. In contrast to the genteel era with its elaborate, settled codes, the

A-1362
Case 1:05-cv-08136-DC Document 1075-7

Filed 08/26/13 Page 7 of 25

236 Social Science History

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Figure 1 Frequency of seduce in American English database
Source: Ngram database.

emphasis in these years was on changing the way people acted (Brown 1940;
Davidson 2004; Kete 2000; Tompkins 1985).3
The earliest American novels, such as William Hill Brown’s Power of
Sympathy (1969 [1789]) and Susanna Rowson’s Charlotte Temple (2011 [1791]),
are instructional texts for young women and broadcast the dangers of seduction, particularly by upper- class men. Charles Brockden Brown’s novels,
such as Ormond (1962 [1799]) and Arthur Mervyn (1969 [1800]), similarly
underscore these perils. While such warnings lessen after 1820, the horrors
of seduction and the shame of the “fallen woman” remain evident in such
works as Catharine Maria Sedgwick’s Hope Leslie (1998 [1827]), James Fenimore Cooper’s Deerslayer (1987 [1841]), and Nathaniel Hawthorne’s Scarlet Letter (1962 [1850]). Not surprisingly, the literature of this era features
the word SEDUCE more often than do later writings. (Capitalized words
are displayed in the accompanying graphs.) The word FAITHFUL, a signifier for the proper sort of behavior, also recurs more prominently in this era
than in later years (Bercovitch 1994: 620–60; Davidson 2004; Fiedler 1966:
105–23) (figures 1–2).
Efforts to check wanton misdeeds were the opening salvos in a campaign to reshape middle- class values. This concerted effort, which characterized the sentimental era, highlights the growing importance of Christianity
and the cult of domesticity. Among the white population, church adherents
(those who belonged to a congregation or often attended services) rose from
about 14 percent in 1800 to 35 percent in 1850. Not surprisingly, CHURCH

A-1363
Case 1:05-cv-08136-DC Document 1075-7

Filed 08/26/13 Page 8 of 25
Evolution of the Novel 237

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Figure 2 Frequency of faithful in American English database
Source: Ngram database.

was widely used during these years—far more so than in later epochs. Similarly characteristic of this first era was the emphasis given to the terms
PIOUS and SINFUL (figures 3–4). The same holds true for the frequency
of words (not here graphed) such as Christianity, faith, God, grace, and prayer.
Certainly, the next period, the genteel era, lauded churchgoing—it was part
of that epoch’s elaborate codes. However, the heightened concern for piety
between 1789 and 1860 reflected the obsessions of a period of intense proselytizing. During these years ministers labored to change people’s beliefs. By
contrast, in the genteel era most middle- class individuals knew their duties,
and the flood of religious rhetoric receded.4
Ann Douglas (1988) describes the changes in this era as the “feminization of American culture” and emphasizes the role of ministers and
women authors in this transformation (see also Baym 1993: 11–50; Finke and
Stark 1986; Howe 2007: 285–327; Welter 1966). The growing importance
of MOTHER in comparison to FATHER testifies to that feminization and
reflects the ascent of the cult of domesticity (figure 5). In 1800 references to
“father” are far more common than those to “mother,” but during the ensuing decades, and particularly after 1820, the gap closes strikingly.5
Key words highlight two other aspects of the sentimental era. One is the
increased appreciation for the natural world. The newfound delight in nature
was evident in the work of novelists; in the writings of transcendentalist philosophers, such as Ralph Waldo Emerson; and in the paintings of the Hudson River and Luminist schools. Much of the wonder that Americans felt in

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238 Social Science History

..- IfV\ oIU\
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Figure 3 Frequency of church in American English database
Source: Ngram database.

1 \rt-\
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Figure 4 Frequency of pious and sinful in American English database
Source: Ngram database.

viewing their seemingly limitless forests, streams, waterfalls, and mountains
is encapsulated in the word SUBLIME (figure 6). The term brings together
the qualities of beauty with terror or awe. Many writers, such as Cooper, were
fond of this concept. For example, sublime and its grammatical variants, such
as sublimity, appear 20 times in The Pathfinder (1961 [1840]) and 8 times in
The Deerslayer (1987 [1841]).6 After 1860 and particularly once industrialization and urbanization had darkened the American landscape, writers were
less likely to view the natural world in that exalted light (Blakemore 1986;
Novak 2007; Ringe 1971: 3–33).

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Evolution of the Novel 239

..- """,rv
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Figure 5 Frequency of father and mother in American English database
Source: Ngram database.

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Figure 6 Frequency of sublime in American English database
Source: Ngram database.

Still another development important for both literature and, more
broadly, American society was the rising importance of the concept of
CHILDHOOD (figure 7). The colonists typically had regarded children as
miniature adults. During the sentimental era middle- class families gradually
came to view these early years as a special stage of development. Beginning in
the 1830s, the new outlook was evident in the writings of transcendentalists
such as Emerson, the pronouncements of ministers such as Horace Bushnell,
and the works of such novelists as Hawthorne, Harriet Beecher Stowe, and
Susan Warner. Childhood remained a serious time; not until the genteel era

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._.-

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Figure 7 Frequency of childhood in American English database
Source: Ngram database.

were adults willing to give children periods of pure play. Still, a new appreciation of the young had emerged (and as the graph suggests, belief in childhood intensified in the postmodern era and will be discussed below) (Mintz
2004; Reinier 1996).

The Genteel Era, 1860–1915
The next epoch, the genteel era, was likewise marked by great changes. What
characterized this period was the dominance of an elaborate if unwritten
code that defined proper middle- class behavior. This worldview gradually
broke down during the last decades of the era, but at its height this credo
was marked by a long list of attributes. These included optimism and a clearcut morality. The genteel code also embraced a belief in the superiority of
the white race and a commitment to Protestantism, progress, the doctrine
of the two spheres, temperance, and sexual modesty. In 1911, when George
Santayana (1967 [1911]) wrote his celebrated essay “The Genteel Tradition
in American Philosophy,” many had come to view these beliefs as oppressive. But in its heyday—the 1860s and the 1870s—this outlook encompassed
many of small-town America’s noblest virtues, such as an emphasis on caring
families and close-knit communities (ibid.; Smith 1978).
Perhaps no word characterizes the goodness of the early genteel era more
than LOVING, a word widely used from the 1860s to the end of the century
(figure 8). The term is the hallmark of Louisa May Alcott’s Little Women

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-

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Figure 8 Frequency of loving in American English database
Source: Ngram database.

(2008 [1868]) and Mark Twain’s Tom Sawyer (1972 [1876]), two novels that
epitomize these optimistic decades. Both works are set in small towns. While
not everyone is well mannered in Alcott’s Concord or Twain’s Saint Petersburg, concern for family and neighbors lies at the heart of the books. Loving
appears 44 times in Little Women. When Mr. March goes off to war, he writes
to his wife, “I know they [his daughters] will remember all I said to them,
that they will be loving children to you . . . that when I come back to them
I may be fonder and prouder than ever of my little women.” On another
occasion Mrs. March and the girls help a poor German family: “‘That’s
loving our neighbor better than ourselves, and I like it,’ said Meg, as they set
out their presents while their mother was upstairs collecting clothes for the
poor Hummels” (Alcott 2001 [1868]: 52, 58). In Tom Sawyer, when the boys
return from Jackson’s Island, Huck receives a warm welcome. The narrator
comments, “The loving attentions Aunt Polly lavished upon him were the
one thing capable of making him more uncomfortable than he was before”
(Twain 1972 [1876]: 144).7
Other markers of genteel behavior come from the terms of reproach
SCOUNDREL and COQUETTE (figure 9). Both denote individuals
whose behavior was judged improper but who also remained accepted outliers in Victorian America. In Twain’s Huckleberry Finn (2003 [1884]) scoundrel is used repeatedly to refer to the two con men, the Duke and the Dauphin. The Duke in fact hurls the epithet at the Dauphin, while Huck refers
to both grifters that way. Unlike scoundrel, whose use peaked in the genteel

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.
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Figure 9 Frequency of scoundrel and coquette in American English database
Source: Ngram database.

era, coquette was widely used in the preceding era as well. Hannah Foster
titled her 1797 novel The Coquette. Similar to coquette was flirt, a term whose
use soared during the genteel era. In Little Women the word appears 17 times
both as a noun and as a verb and usually hedged with disapproval. After
1900 the frequency of scoundrel, coquette, and flirt falls off sharply. The framework that cast into sharp relief these mildly transgressive behaviors was itself
crumbling.
Another intriguing pair of words, LEG and LIMB, further illustrates
the nature of the genteel era and the changes in this period. Until the 1880s
the two terms tracked each other, with limb serving as a politer referent for
leg. For example, in Little Women Alcott introduces both words. Limb is typically used when describing the March sisters. The novel notes Jo’s “long
limbs” and Beth’s “feeble limbs” or how Amy sat “with every limb gracefully composed” (Alcott 2001 [1868]: 48, 241, 312). But when discussing little
children, infants, or animals, leg becomes the preferred term. Alcott (ibid.:
365, 457) writes, for example, about the “baby’s legs” and “Demi’s short
plaid legs.” As the graph makes clear, references to limbs plummet after 1880
(figure 10). This decline, it would seem, is the first indication of the breakdown of the elaborate strictures that came together in the genteel era. More
broadly, these changes (and others evident by 1900) suggest an arc that transcends and ties together the four epochs. From the 1780s until the late nineteenth century, American society was marked by an ever more well- defined
social code. Beginning at the end of the nineteenth century and continu-

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....-

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Figure 10 Frequency of leg and limb in American English database
Source: Ngram database.

ing through the modern and postmodern eras, these prescribed patterns of
behavior gradually broke down and were replaced by guidelines that were
increasingly less restrictive.8
By the turn of the century the genteel world was clearly crumbling, even
as the Victorian codes continued to matter. The suicides of the female protagonists in Kate Chopin’s Awakening (1899) and Edith Wharton’s House of
Mirth (1905) illustrate the force those ideas retained. Still, the decline of older
values was unmistakable. Industrialization, urbanization, and the “new”
immigration from eastern and southern Europe all undercut the hegemony
of small-town, Anglo-Saxon America, which had provided the foundation
for the era. A genteel America remained after 1915, lingering particularly in
small towns and rural areas, but it no longer dominated the larger society
(Delbanco 1997: 83–154; May 1959).

Modern Era, 1915–1960
The changes that sounded the death knell for the genteel era also marked
the opening of the modern era. Cities, not small towns, now ruled the social
landscape. Many in the middle class no longer deemed sinful those activities,
such as drinking or sexual relations outside marriage, that earlier generations
had condemned as immoral. Mainstream writers, such as Sinclair Lewis,
now reviled rather than praised small towns. But while modern America was
in many respects freer and more daring than genteel society had been, it

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II

011(,_
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--,

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Figure 11 Frequency of damn in American English database
Source: Ngram database.

still bore the unmistakable stamp of an established order. Although women
now voted and the Harlem Renaissance briefly flourished, gender and racial
hierarchies held firm. Few questioned the value of families or religion, even
while these institutions were redefined. Even during the Great Depression
few doubted that the United States was a wonderful country or that the
American dream was worth pursuing (Adams 1978; Baker 1987; Deen 2002;
Douglas 1996; Kaplan 2010; Rado 1994).
In part, the modern era was defined by the new freedoms that emerged
with the breakdown of genteel values. The decline of coquette and flirt signaled a new sexual openness. Those who now regarded the “loving” families
of Victorian America as stifling institutions celebrated the possibilities that
came from franker, more open relationships. The disappearance of scoundrel pointed to a society in which individuals undertook grimmer deeds.
Few would label as “scoundrels” William Faulkner’s mean-minded protagonists, such as Popeye in Sanctuary (1931) or Joe Christmas in Light in August
(1932). The villains of genteel fiction pale in comparison to the psychologically twisted characters in modern works (Allen 1952; Susman 1984).
The rising use of DAMN is another sign of the loosening of older values
(figure 11). This imprecation may seem mild to today’s ears, but the expression, a shortening of God damn, was blasphemous and rarely used in literature or public forums before 1915. When Rhett Butler told Scarlett O’Hara
in Gone with the Wind (1939), “Frankly, my dear, I don’t give a damn,” at least
some viewers were shocked (Flamini 1975: 317–20). (The 1930 Motion Pic-

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Evolution of the Novel 245

1'-1

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Figure 12 Frequency of romantic and conform in American English database
Source: Ngram database.

ture Association’s Production Code had banned the word and fined the producer David O. Selznick $5,000.) The word abounds in modern literature.
For example, damn or damned appears 43 times in F. Scott Fitzgerald’s This
Side of Paradise (1920) and 35 times in his Beautiful and the Damned (1922).
The new sense of freedom that marked the early years of the modern era
was also captured in the word ROMANTIC (figure 12). Where loving suggested the dependable, caring individuals who were the pillars of the Victorian family, romantic had a more transgressive feel. It described persons who
listened to their own hearts and cast aside society’s codes. Romantic had first
risen in importance during the heyday of transcendentalism. Its frequency
lessened during the early genteel era, when Victorian morality prevailed. But
as those strictures weakened, romantic became more common, and its use
soared in the 1920s. Jay Gatsby in Fitzgerald’s Great Gatsby (1925) stands
as the quintessential romantic hero. In introducing him, the narrator, Nick
Carraway, notes that Gatsby possesses “a romantic readiness such as I have
never found in any other person and which it is not likely I shall ever find
again” (Fitzgerald 1925: 2).
The modern era had another side, one that was more staid and conformist. The ascent of the term MIDDLE CLASS also characterizes this period
(figure 13). This designation had been gradually growing in importance since
the nineteenth century, but the gains were most striking between 1915 and
1940 (another sharp advance came after 1960). The modern era was an epoch
of increasing wealth and comfort despite the hardships of the Great Depres-

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000' ......

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MIOCLE CLASS

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Figure 13 Frequency of middle class in American English database
Source: Ngram database.

sion. The Ngram database indicates that the use of words such as profits,
earnings, and investments skyrocketed in this era. These terms, to be sure,
were found more often in the business press than in fiction, but novels also
help detail the expansion of the middle class. Logan Killicks and Jody Starks
in Zora Neale Hurston’s Their Eyes Were Watching God (1937) are exemplars
of these new monied individuals, as are the Snopeses in Faulkner’s trilogy
that begins with The Hamlet (1940).
By the 1950s the middle class was prosperous, often smug, and prone
to conformity. Significantly, citations of two transgressive terms—romantic
and damn—which had risen in the 1920s and the 1930s, fell off in the 1950s.
Instead, the last part of this epoch was marked by the steady ascent of the
term CONFORM, whose use peaked in the 1950s (figure 12). In the 1950s
novelists such as Ralph Ellison, J. D. Salinger, Mary McCarthy, and Saul
Bellow depicted and criticized the middle class. But no writer saw an alternative to accepting and living with this oppressive society. For example, in
Salinger’s Catcher in the Rye (1951: 13) the protagonist, Holden Caulfield,
rails against conformist society, complaining that he was “surrounded by
phonies,” but in the end plans to become part of that world.

Postmodern Era, 1960–
The postmodern era marks another sea change in American society and culture. Long-held assumptions that had shaped modern society now slowly

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I

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Figure 14 Frequency of shit and fuck in American English database
Source: Ngram database.

crumbled, much as the edifice of Victorian values had shattered early in the
twentieth century. No longer did educated, middle- class Americans accept
gender and racial hierarchies that had prevailed for centuries. The civil rights
and women’s movements had a far-reaching impact. (Terms such as racism
and sexism, little used in earlier years, now soared in importance.)9 Novelists and others questioned the meaning and value of middle- class life. Characteristic of the era was the waning of the traditional family and the growing
acceptance of alternative lifestyles. At the same time, the hollowing out of
American industry eliminated a broad swath of the middle class. Changes in
government policies heightened the extremes in wealth. Once vibrant cities
now housed the gated rich and the teeming poor (Elias 1999; Jameson 1991,
1998; McHale 1987; Steiner 1999).
The growing disdain for older, middle- class values was evident in the
spread of profanity. The prevalence of SHIT, FUCK, and other formerly
taboo words testified to the new order (figure 14). When Norman Mailer
wrote his first novel, The Naked and the Dead (1948), his publishers persuaded
him to use fug instead of fuck. Mailer’s postmodern works have no comparable circumspection. Fuck and cocksucker fill the pages of The Executioner’s
Song (1979). Similar language is present in other works of great seriousness,
such as the novels of Philip Roth. (Incidentally, the spike between 1800 and
1815 in the graph for fuck reflects a flaw in Google’s OCR: the older letter s
was misread as f.)
Another change signaled by language is the growing importance of

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.-V\
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Figure 15 Frequency of men and women in American English database
Source: Ngram database.

women in society and literature. This trend is evident in the relative frequency of WOMEN and MEN in printed material (figure 15). During the
sentimental era, even as mother grew more important, women barely rose in
frequency. However, since 1960 men and women have switched places in the
frequency of citations. The swap occurred because there were fewer references to “men”—a long-term trend—and because there were many more
citations of “women.” Man or men no longer served as a synecdoche for
people. Moreover, the use of mother has surpassed that of father in postmodern books.10
A similar pattern emerges in looking at HE and I, with I emerging as
clearly predominant in the postmodern era (figure 16). References to the two
pronouns had long fluctuated together, with I holding a slight edge since the
1830s, when transcendentalists and others exalted the individual. In today’s
world I has become ever more common. The trend is hardly surprising in
an era of confessional novels and, more recently, bloggers eager to post their
innermost thoughts.
Finally, one of the most striking developments of the postmodern era
has been the celebration of ties between parents and children, an emotional
bonding reflected in many current novels. To many observers, postmodern society appears chaotic, lacking the structures and rules that once held
groups together. In this sometimes frightening new world, the bedrock that
remains for many is the love between a parent and a child. The new concern for children is evident in the sharply increased references after 1960 to

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Evolution of the Novel 249

....;.\

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Figure 16 Frequency of I and he in American English database
Source: Ngram database.

...-

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Figure 17 Frequency of nurturing and toddler in American English database
Source: Ngram database.

NURTURING and TODDLER (figure 17). The trend is also evident in the
reinvigoration of the term childhood, which first rose in importance during
the sentimental era. Many of the key postmodern novels have at their core
the tight link between a parent and a child. Works that illustrate this tie are
as diverse as Toni Morrison’s Beloved (1987), Roth’s American Pastoral (1997),
Richard Russo’s Empire Falls (2001), and Cormac McCarthy’s Road (2006).11
To conclude, this article argues that the study of various terms drawn
from the Ngram database deepens our understanding of the evolution of
American novels. Any essay such as this one, which deals with a broad sweep

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250 Social Science History

of literature, a powerful but imperfect database, and links between social
change and literature, can hardly be taken as the final word. The conclusions
set forth are necessarily hypotheses subject to further testing. Future refinements to the Ngram database or its successors will surely make possible more
precise searches.12 Still these data, which rest on the analysis of millions of
books, are too valuable to ignore even in their present form. These data confirm the current division of US literature into four eras and sharpen the conclusions about each of those periods.

Notes
I would like to thank Art Redding, Randolph Roth, Karen Wilson, and Brett Zimmerman for their comments on an earlier version of this article. Ben Egnal created the graphs.
1
Typically, earlier overviews sought to unify American literature around a single
broad theme, such as the conflict between the “people” and plutocrats (Parrington
1927), the impact of mechanization (Marx 1964), or the differences between English
and American novelists (Chase 1957; Fiedler 1966).
2
The Ngram database reflects the interests of the middle class more than the outlook of the working class. Google apparently scanned very few of the hundreds of
thousands of dime novels that circulated in the nineteenth century and little of the
pulp fiction or popular romance literature of the twentieth century. As various scholars have noted, these mass circulation works often present viewpoints at odds with
“middlebrow” and “highbrow” literature. For a discussion of this popular literature,
see Denning 1987; Goulart 1972; Jones 1978; Reynolds 1989.
3
The year 1789, which opens this era, marks the publication of the first Americanauthored novel, William Hill Brown’s Power of Sympathy.
4
Other words whose use peaked during this period and which reflect the religious fervor of the sentimental era are Christ, confess, devil, Lord, repent, and Satan. Analysis
based on the Oxford English Dictionary (Simpson 2012) suggests that the meanings of
these words, and indeed of most of the terms examined in the graphs, text, and notes
of this article, have not notably changed since the 1780s. For the exceptions to the
rule, see the analysis of leg and limb in the text and the discussions in notes 9 and 11.
However, as this article makes clear, the frequency with which words have been used
has varied dramatically (ibid.).
5
Other words characteristic of the sentimental era and the newly ascendant cult of
domesticity are affectionate, compassion, domestic, and submissive.
6
E-book editions, available at www.gutenberg.org, made possible the tabulations of
Cooper’s word use. This same source was used for the other single-book word counts
mentioned in the text.
7
An extensive literature examines Twain’s complex relationship to the genteel tradition. See Brooks 1920; Kaplan 1966; Krauth 1999; and Smith 1978: 102–27.

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Evolution of the Novel 251

8

9

10
11

12

Various terms whose use declines after 1900 are also markers of the breakdown of
genteel values. These words include brave, hero, honor, house, respectful, sentiment,
sigh, tender, and villain. Temperance also falls off but has a brief second surge in the
1920s with Prohibition.
According to the Oxford English Dictionary (Simpson 2012), racism with its modern
meaning dates from the 1920s, while sexism as currently used emerged only in the
1960s. In earlier eras sexism was a rarely used term that referred to belonging to one
gender, not discrimination against women (ibid.).
Similarly, grandmother has surpassed grandfather in the postmodern era.
The frequency of other terms that reflect the new devotion to nurturing has soared
in the postmodern era. Among these words are baby, babysitter, caregiver, caring, day
care, infant, and nanny. Two words, domestic and home, widely used in the sentimental and genteel eras, have experienced a new vogue. The Oxford English Dictionary
(Simpson 2012) suggests that babysitter dates from the 1930s, while only during the
nineteenth century did toddler (see figure 17) come to mean a small child.
Readers may wonder whether all the words tested for this article conformed neatly
to the four periods. Most did, but a few did not. Some words have multiple meanings. For example, a rake can be a cad or a garden implement, and its Ngram pattern shows little clarity. Some words reflect events or particular time periods. Soldier
peaked during the Civil War and the two world wars; tenement soared during the
early twentieth century. A few words were simply puzzling. For example, greedy and
understanding fluctuated with little evident pattern.

References
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Cooper, James Fenimore (1961 [1840]) The Pathfinder. New York: New American Library.
——— (1987 [1841]) The Deerslayer. New York: Penguin.
Davidson, Cathy N. (2004) Revolution and the Word: The Rise of the Novel in America,
expanded ed. New York: Oxford University Press.
Deen, Stella, ed. (2002) Challenging Modernism: New Readings in Literature and Culture, 1914–1945. Burlington, VT: Ashgate.
Delbanco, Andrew (1997) Required Reading: Why Our American Classics Matter Now.
New York: Farrar, Straus and Giroux.
Denning, Michael (1987) Mechanic Accents: Dime Novels and Working-Class Culture
in America. London: Verso.
Douglas, Ann (1988) The Feminization of American Culture. New York: Doubleday
Anchor.
——— (1996) Terrible Honesty: Mongrel Manhattan in the 1920s. New York: Noonday.
Elias, Amy J. (1999) “And the beat goes on: Defining postmodernism and its other.” Contemporary Literature 40 (1): 161–80.
Elliott, Emory, ed. (1991) The Columbia History of the American Novel. New York:
Columbia University Press.
Faulkner, William (1931) Sanctuary. New York: Cape and Smith.
——— (1932) Light in August. New York: Smith and Haas.
——— (1940) The Hamlet. New York: Random House.
Fiedler, Leslie A. (1966) Love and Death in the American Novel. New York: Dell.
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180–92.
Fitzgerald, F. Scott (1920) This Side of Paradise. New York: Scribner.
——— (1922) The Beautiful and the Damned. New York: Scribner.
——— (1925) The Great Gatsby. New York: Scribner.
Flamini, Roland (1975) Scarlett, Rhett, and a Cast of Thousands: The Filming of Gone
with the Wind. New York: Macmillan.
Foster, Hannah (1986 [1797]) The Coquette. New York: Oxford University Press.
Google Books Ngram Viewer (2011) ngrams.googlelabs.com/info (accessed April 4, 2011).

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Evolution of the Novel 253

Goulart, Ron (1972) Cheap Thrills: An Informal History of the Pulp Magazines. New
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——— (1979) The Executioner’s Song. Boston: Little, Brown.
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254 Social Science History
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Wharton, Edith (1905) House of Mirth. New York: Scribner.

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EXHIBIT 8

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Statement of Paul Aiken
On the Google Book Settlement
Committee on the Judiciary
House of Representatives
September 10, 2009

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EXECUTIVE SUMMARY
Overview
My name is Paul Aiken. I’ the executive director of the Authors Guild, the
m

largest society of published authors in the U.S., representing more than 8,500 book
authors and freelance writers. Our members represent the broad sweep of American
authorship, including literary and genre fiction, nonfiction, trade, academic, and
children’book authors, textbook authors, freelance journalists and poets.1 Guild
s
members have won countless honors and all major literary awards, including the Nobel
Prize for Literature.2
The Authors Guild promotes the professional interests of authors: we’
re
advocates for effective copyright protection, fair contracts, and free expression.
The Challenges Facing Print Media
It’a pleasure to be here before this committee, at this moment in book publishing
s
history. Never in the Authors Guild’long history has its straightforward mission –
s
to
maintain writing as a viable livelihood –
been so daunting. The digital environment is
brutal for print media. As we meet here today, the newspaper industry is dying. Credible
estimates say that one newspaper is closing each week in America. The magazine
industry isn’much better off, as week by week we see venerable publications shrink in
t
size and ambition. The loss to our society from the collapse of these industries is

1

The Guild had its beginnings as the Authors League of America, which was founded in 1912 by
a group of book authors (including Theodore Roosevelt, who served as the League’founding
s
vice president), short story writers, freelance journalists and a smattering of dramatists. In the
1920s, the Authors League broke into two groups: the Authors Guild and the Dramatists Guild of
America.
2

Pearl S. Buck (1938) (who served as Authors Guild president), William Faulkner (1949), John
Steinbeck (1962), and Isaac Bashevis Singer (1978). One Guild member, Elie Wiesel (1986), has
won the Nobel Peace Prize.

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immeasurable.
The book industry, happily, has to date fared better than our colleagues in the
print media. This is, no doubt, partly due to our medium: print books are still superior in
almost every way to their electronic counterparts. That advantage is rapidly fading,
however; our transition to digital form is underway, and things change quickly in a digital
environment.
The portents are not encouraging. Finding a sustainable business model for
creative work in digital form seems nearly impossible on the Internet: if piracy doesn’
t
get you, the aggregators will.
We’ likely need many things to go right to avoid the fate of our colleagues in the
ll
print industries.
The Opportunity
Yet, there are reasons for optimism. One of those reasons is our settlement with
Google, which brings us here today. That settlement promises to address one of the
oldest and most vexing of market failures: the loss to the commercial market of out-ofprint books.
If you had asked knowledgeable people a couple of years ago whether we were
close to delivering a near universal library to public libraries, colleges, and universities
across the country, they would have scoffed. The technical challenges seemed too
daunting, the rights clearance issues insurmountable, the passions stirred by the ongoing
copyright wars far too intense for such a result to be achieved in the foreseeable future.

But here we are, on the cusp of that extraordinary achievement: the marriage of

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much of our collective library with the Internet. The benefits to readers, students, and
scholars would be profound. Here are a few:
1.

The settlement would turn every library into a world-class research

facility, by offering every public library building in the U.S. – 16,500 of them
all
– free portal to millions of out-of-print books. The settlement would also offer a
a
free portal to that same vast database of out-of-print books to more than 4,000
higher education institutions, from community colleges to our most elite
universities.
2.

Students and professors at colleges with the most modest of endowments

would find an important part of the academic playing field had come to level, as
they gain full access from every computer on campus to a library exceeding that
of the finest Ivy League schools.
3.

The visually and reading impaired would find the stacks of libraries open

up to them as never before, gaining access to orders of magnitude more books
than they currently have.
4.

The settlement would offer anyone online in the U.S. free "preview"

access to hundreds of millions of pages of text (up to 20% of each book).3
Readers from their own home computers would be able to review hundreds of
accounts of the Battle of Vicksburg, or of the beginnings of the Industrial
Revolution, or of the sources and interpretation of Moby Dick, at no charge.

3

Here's the math: we expect the settlement to make at least 10 million out-of-print books
available, which, at an average of 300 pages per book, represents at least 3 billion pages of
professionally written, professionally edited text. 20% of that is 600 million pages of text
available at every desktop computer in the U.S. as a free preview. (For comparison, Encyclopedia
Britannica is about 44,000 pages in print form; Wikipedia's featured articles total about 5,000
pages. All English Wikipedia articles, including stubs, total perhaps 3 million pages.)

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Should a reader find one book particularly compelling, she could buy access to
the entire book. Access to public domain books is free, of course, and authors
controlling the rights to their books can choose to give away access for free.
Authors and publishers are willing to make this deal for several reasons. We of
course hope to profit from the market that’created. We would like to have the Internet
s
work for us, creating a market of the previously unmarketable. We also have a vital
interest in keeping books central to our students, scholars, and culture. We’ confident
re
that making this vast library available online will help do just that.
Authors have another strong interest in making this deal work: authors need
libraries. Libraries fuel their work. Authors of every type read, reinterpret and rely on
their fellow authors, and those who have come before them. This is true of the scholarly
writer and of the author of popular nonfiction. It’as true for authors of books for
s
children as it is for authors of books for adults. Authors of literary fiction also rely
heavily on those who’ come before them. The creative expressions are new, but many
ve
of the ideas underlying literary works are eternal. Writers of genre fiction are no
exception. Romance writers read romance novels and other works and offer their own
interpretation and variations on the romance theme.
Authors, in short, want not only to realize the untapped value of their out-of-print
works, they want access to this new, vast online library so that they can more easily
create new works that readers will value.
The Opposition
Opposition to the settlement falls into several broad categories. We’ address
ll
two important objections in this Executive Summary.

5

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Objection #1: Copyright doesn’permit a system that asks authors and publishers to
t
specifically exclude their out-of-print works from uses negotiated on their behalf.
This simply isn’so. There is ample precedent around the world for dealing with
t
market failures in copyright in precisely this way. For example, Germany today operates
a system that nearly parallels the one the settlement would put in place. The German
system allows for
(a) routine copying of out-of-print works written by foreign and domestic authors,
(b) including routine copying of “
orphan”
(unclaimed) works, and
(c) without regard to whether those authors and publishers have expressly approved
those uses.
The German system, however, actually denies authors and publishers any ability to
exclude their works.
The German system goes even further, allowing the copying of in-print works
without the permission of the author or publisher (in our settlement, the author and
publisher must both approve of any displays of in-print works). Germany’photocopy
s
licensing system is perfectly legal, and meets with the norms of international copyright
law.
In fact, this is the typical way for countries to deal with the market failure
represented by the unlicensed photocopying of copyrighted materials, although many
countries allow authors and publishers to exclude their works from such licensing. Other
countries with similar photocopy licensing systems include Australia, Canada, the United
Kingdom and the Nordic countries, among many others. The market for photocopy
licensing often fails without intervention, because the transaction costs of the license,

6

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including the labor costs of the licensee, are simply too high relative to the value of the
individual copy.
The inability to license out of print works to colleges, libraries and individual
users presents a market failure on an epic scale. Here, as with photocopy licensing, a
major component of the transaction costs involve rights clearance issues. Another
impediment is the sheer scope of the project, and the capital and technological resources
it demands. This settlement, with a financially strong and sophisticated technology
partner, addresses the market failure. The societal value in bringing these works back to
the market is incalculable, but until our settlement there was no practical way to do so.4

4

The impediments to making systematic use of the digital rights in out-of-print books are many,
but they fall into two broad categories:
A.

Rights clearance issues. Here, there are three different obstacles. First, it may be
unclear who controls the rights because no one knows whether rights to a particular
out-of-print book have reverted to the author or not (most standard trade book
contracts ask an author to demand a reversion of rights before the contract formally
terminates and the rights revert to the author). Second, it may be unclear who
controls the digital rights for a particular out-of-print book, since many (but not all)
older contracts make no mention of digital or analogous rights. Third, it may be
difficult to find the author or publisher who controls the rights, particularly for
older works. This is the so-called orphan works problem. (More on this later.)

B.

Digitization and presentation issues. Here, the obstacles are capital and
technological sophistication.

The rights clearance issues are largely addressed in Attachment A to the settlement, which deals
with author-publisher issues and was the result of laborious negotiations between author and
publisher representatives, and through the operation of class-action law.
The digitization and presentation issues have been handled with money and clever technology.
Estimates of Google’costs in scanning, digitizing and building the technical infrastructure to
s
support the display of millions of out-of-print books run to about a billion dollars. (We have no
special knowledge of Google’costs.) Part of the challenge for Google was to find an efficient
s
way to scan library books without damaging them by flattening them onto the scanner’surface.
s
It solved this through a patented technology that corrects for the distortions caused by the
scanning of a book page that curves away from the scanner’surface towards the book’binding.
s
s

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Objection #2. The settlement inappropriately permits the use of unclaimed (orphan)
works.
No issue has been more misunderstood or misreported regarding this settlement
than the unclaimed or “
orphan”
works issue.
The primary misconception is the size of the problem: it’much smaller than has
s
commonly been reported, for several reasons. First, finding the rights owner of a book is
not as daunting as many seem to believe. Books do not present the classic orphan works
problem, photographs do. Photographs, both in the physical world and online, often
become separated from their identifying information. This makes finding the rights
owner a near impossibility. Books, however, always contain author and publisher
information, and there’often a copyright registration record to help locate the rights
s
owner. Second, although a copyright-protected book may have been published as long
ago as 1923, the vast majority copyright-protected books in our libraries are far more
recent.5
Another major misconception is the failure to recognize that countries around the
globe are already dealing with the orphan works issue in a productive way. The
photocopy-licensing systems in other English-speaking countries permit the use of
orphan works. This, as previously discussed, is a natural result of those nations’
attempts
to cope with the market failure represented by unlicensed photocopying of copyrighted
works. As the licensing societies collect photocopy royalties and start to cut checks to

5

This is because, for books published between 1923 and 1963, authors had to file renewal
registrations to prevent their works from falling into the public domain. More importantly, the
number of titles produced by the book publishing industry was far lower through most of the 20th
Century than it was in its concluding decades. The median age of a copyright-protected book in a
U.S. library is far younger than many commentators assume.

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authors, word spreads, quickly, and authors step forward to register themselves. The pool
of unlicensed works shrinks. The licensing societies are duty-bound to actively seek out
authors6 for whom they have money. Year by year, they locate more and more authors,
and the orphan works problem diminishes further.
We have some experience with this, since we helped found and long provided
financial support to the Authors Registry, an independent, non-profit, rights-payment
agency. The Authors Registry collects photocopy and other use fees from overseas,
particularly from photocopy uses in the U.K., and pays authors in the U.S. the amounts
due them. A sample of our success in paying authors of out-of-print works last year
suggests that we reach 85% of such authors. The success rate of larger, more developed
systems –
such as that of the Authors’
Licensing and Collecting Society (ALCS) in the
U.K. –
demonstrates that even higher success rates are possible. (The ALCS,
representing more than 30,000 published writers, is an enthusiastic supporter of the
settlement, for good reason. They know it can work, because they’ achieved great
ve
success finding and paying photocopy revenues to authors of out of print books.)
Thus, this settlement presents a practical solution for the problem of orphan works
for books. When an author is identified, then requests for all kinds of other uses –
for
permission to use an excerpt from the author’work, reprint it, or to translate it into a
s
foreign language – be relayed to the author or the author’agent and acted upon.
can
s
The orphan works issue is far smaller, and far more tractable, than some objectors
would have you believe. The settlement itself is a big part of the solution.

6

Publishers are sought out too, of course. In some systems, such as in the U.K., different
societies represent authors and publishers. In others, such as in Australia and Canada, the same
society represents both authors and publishers.

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Conclusion
We urge this committee to recognize this settlement for what it is: the
outstanding result of a rare and productive truce in the copyright wars, negotiated by
strong-willed and pragmatic representatives of the author, publisher, and library
communities and a sophisticated technology partner.
To a dispassionate observer, we believe the solution presented by this settlement
is how a rational, useful market for out-of-print books should operate in the digital age.
The means of getting there, a class-action settlement, may be novel, but that shouldn’
t
distract us from the great good – readers, students, scholars, authors and publishers –
for
that this settlement accomplishes. Similar systems, inevitably, will develop around the
world.
This settlement doesn’pre-empt congressional action, but there’no need to act
t
s
now, before we see how well this solution works in the real world. We suspect many of
the concerns –
including all of the major objections –
will prove unwarranted as this
settlement goes into operation. There’no need to fix that which likely isn’broken at
s
t
all.
Allowing this opportunity to slip through our grasp would be a tragic loss to all
those who value the riches stored in our nation’libraries.
s

II.

INTRODUCTION TO THE SETTLEMENT
In 2004, Google Inc. (“
Google” announced that, as part of its Google Library
)

Project (or “
GLP” it would reproduce millions of copyrighted books located in U.S.
),
libraries and display “
snippets” those books on its website. These books had been
of
published within and outside the United States and their copyright owners included

10

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publishers and authors domiciled in both the United States and around the world. In
copying and displaying content from books as part of the GLP, Google did not seek the
permission of the copyright owners of those books.
The Settlement resolves two copyright infringement actions brought against
Google by authors and publishers that alleged that Google’unauthorized copying of
s
books and display of snippets without permission constituted copyright infringement
under the U.S. copyright laws. Google defended its actions as non-infringing fair uses, as
authorized by 17 U.S.C. § 107.
At the end of October 2008, after a negotiation that lasted more than two years,
the author and publisher plaintiffs and Google announced that they had reached a
comprehensive settlement of the litigation. The Settlement avoids further discovery and
litigation, which could have been protracted.
The Settlement was carefully negotiated to protect the copyright interests of, and
to provide meaningful benefits to a class of authors (and their heirs) and publishers of
books covered by the Settlement (essentially, books published on or before January 5,
2009). One of the Settlement’crowning achievements for the class -- and for the United
s
States public -- is that it breathes new life into millions of out-of-print books, which until
now have been relegated to the dusty stacks of university libraries. The Settlement also
provides new marketing and revenue opportunities for rightsholders of in-print books
(should they choose to take advantage of them), in a way that does not harm the existing
markets for those books.
If approved, the Settlement will provide the following material benefits to authors
and publishers:

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
Payment to Rightsholders: Google will be authorized to use class
members’
works in several revenue models, and will pay 63% of the revenues
earned from its exploitation to a Book Rights Registry (the “
Registry” for
),
disbursement (after an administrative charge) to the Rightsholders of those works;

Rightsholders Retain Control: The Settlement is non-exclusive and does
not involve any transfer of copyright ownership interests or any other property
interests to Google. Additionally, Rightsholders at all times will retain control
over their works, with the ability to determine the extent to which their works are
to be included in or excluded from Google’ uses, and to license their works to
s
others;

Compensation to Rightsholders for Past Alleged Infringement: Google
will pay at least $45 million to compensate class members whose works Google
digitized without permission before May 6, 2009.

Establishment of Registry: Google will pay $34.5 million both for notice
and settlement administration costs and to fund the Registry, a non-profit
organization that will be managed by a Board representing authors and publishers,
that will locate rightsholders, maintain a database of their contact information,
collect and pay revenues to the class for Google’use of copyrighted works
s
through this Settlement, and otherwise protect and represent the interests of the
class.
As explained in more detail below, the Settlement provides extraordinary and
previously unattainable benefits to authors and publishers in the United States and all
over the world, along with remarkable benefits to the reading public, students, scholars
and researchers in the United States.
III.

THE MATERIAL TERMS OF THE SETTLEMENT
A.

The Settlement Class and Sub-Classes.7

The Settlement Class is defined as follows:
All persons or entities that, as of January 5, 2009, have a Copyright
Interest in one or more Books or Inserts. All Settlement Class members
are either members of the Author Sub-Class or the Publisher Sub-Class,
or both. Settlement Agreement (“ ) § 1.142.
SA”

7

Capitalized terms used have the same meaning as in the Settlement Agreement.

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 Author Sub-Class
All members of the Settlement Class who are authors, and their heirs, successors,
and assigns, and any other members of the Settlement Class who are not members
of the Publisher Sub-Class. SA § 1.14.
 Publisher Sub-Class
All members of the Settlement Class that are (a) companies that publish books,
and their exclusive licensees, successors, and assignees, and (b) companies that
publish periodicals and have a Copyright Interest in one or more Inserts, and their
exclusive licensees, successors, and assignees. SA § 1.120.8
B.

The Parties.

The Representative Plaintiffs for the Author Sub-Class are authors Paul Dickson,
Joseph Goulden, Daniel Hoffman, Betty Miles, and Herbert Mitgang. SA § 1.125. The
Representative Plaintiffs for the Publisher Sub-Class are The McGraw-Hill Companies,
Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc., and
John Wiley & Sons, Inc. Id. The Authors Guild and the AAP are “
Associational
Plaintiffs.”SA § 1.12. The Associational Plaintiffs participated in the litigation to
advance the rights and interests of the Author Sub-Class and Publisher Sub-Class,
respectively, and served as consultants to counsel for the respective sub-classes.

8

A“
Copyright Interest”
refers to a United States copyright interest to the extent
implicated by a use covered by the Settlement Agreement, i.e., reproduction of a Book
and the Display Uses and Non-Display Uses (described below). SA § 1.38. A “
Book”
refers to a written or printed, bound work that was published or distributed prior to
January 6, 2009 and, if a “
United States work”
under 17 U.S.C. § 101, registered with the
United States Copyright Office. The Settlement excludes from the definition of Book
works that are Periodicals, unbound personal papers, and works in the public domain
(including government works). SA § 1.16. An “
Insert”
refers to copyrighted textual (but
not pictorial) content in a book whose rightsholder is different from the book’
s
rightsholder. SA § 1.72. See the sections of the SA cited in this footnote for more details
concerning these definitions.

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Google was the sole defendant in the cases. In addition, though not parties to the
litigation, the libraries of the University of Michigan, Stanford University, and the
University of California took part in the settlement negotiations. They, along with a
large number of other libraries, have entered into digitization agreements with Google, to
allow their collections to be digitized. Numerous university libraries plan to participate
in the GLP as well. A list of libraries that are authorized to provide books to Google for
copying, and to receive digital copies, can be found at Attachment G of the SA.
C.

Benefits To Authors and Publishers.
1.

Revenues From Google’Use Of Books And Inserts
s

The Settlement authorizes Google, on a non-exclusive basis, to digitize Books and
Inserts, to develop a searchable electronic books database, and to display and make
commercial use of Books and Inserts, including the following “
Display Uses”
:
 sell institutional subscriptions to schools, corporations, and government
offices (“
Institutional Subscriptions” (SA § 4.1);
)
 sell online access to Books to consumers (“
Consumer Purchases” (SA §
)
4.2);
 display “
previews” to 20% of a Book (SA § 4.3)) and “
(up
snippets”
(several lines of a Book (SA § 1.147)) in order to spur Book sales and
earn advertising revenues;
 place advertisements next to Book text (SA § 4.4); and
 provide free Public Access Services to all public and school libraries, with
any printing from these services subject to a per-page fee (SA § 4.8).9

9

Also, subject to agreement with the Registry, Google may, in the future, be
authorized to exploit works in other revenue models, such as consumer subscriptions,
print on demand, custom publishing, .pdf downloads, and summaries, abstracts and
compilations. SA § 4.7.

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Note that all authorizations, including the right to digitize books and to display and make
commercial uses of Books and Inserts, are confined to the United States and Google
obtains no rights under the Settlement under any law other than United States law.
Revenues earned from Display Uses will be split 63/37 in favor of the
Rightsholders. SA § 4.5. (“
Rightsholders” members of the Settlement Class that do
are
not opt out of the Settlement.) Google will pay 63% of these revenues to the Registry,
for disbursements to the Rightsholders.
2.

Classification of Books.

The Settlement differentiates between Commercially Available (generally, inprint) and not Commercially Available (generally, out of print) Books. The purpose of
this distinction is to ensure that Google’Display Uses do not cannibalize the existing
s
markets for Commercially Available books. Thus, the Settlement treats Commercially
Available Books differently from Books that are not Commercially Available (i.e., Books
that are not being marketed or sold by the publishers of the Books). SA §§ 3.2-3.3.
Specifically, Google may not make any Display Uses of Commercially Available Books
–
both the revenue models described above and “
snippet display” unless both the author
–
and publisher authorize Google to do so. Id. In contrast, Books that are not classified as
Commercially Available will, by default, be included automatically in all Display Uses.
At any time, however, the Rightsholder of a Book can change the default and instruct
Google to exclude any Book from any one or more Display Uses. Id.
Google will initially determine whether or not a Book is Commercially Available
as of January 5, 2009 (the Notice Commencement Date). SA § 3.2(d) (referred to in the
SA as the “
Commercially Available”
classification). Google and the Registry will

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continue to be assessing whether Books are Commercially Available using multiple
sources of information. Rightsholders who claim their Books will be informed if a
change is made in the Commercially Available classification of those Books.
Rightsholders can challenge the determination of whether a Book is
Commercially Available, and any disputes with Google will be resolved through the
Settlement’arbitration procedures (see SA Article IX). SA § 3.2(d)(iv).
s
3.

Rightsholders’
Do-Not-Digitize/Removal Rights.

Rightsholders can tell Google not to digitize their Books, or if already digitized,
to remove their Books from Google’database and from the digital copies provided by
s
Google to participating libraries. SA §§ 1.124, 3.5(a)(i). Google and the libraries must
honor all do-not-digitize/removal requests made by April 5, 2011; thereafter requests will
be honored only if the Books have not already been digitized. SA § 3.5(a)(iii).10
4.

Rightsholders’
Exclusion Rights.

Even if they do not remove a Book from Google’and the libraries’
s
databases,
Rightsholders at any time can exclude their Books (or portions thereof) from any or all
Display Uses. SA § 3.5(b). Insert Rightsholders at any time can exclude Inserts (or
portions thereof) from all (but not less than all) Display Uses. Id. Rightsholders can
change their mind at any time and turn Display Uses back on for some or all of their
Books and Inserts. Id.
5.

Rightsholders’
Pricing Rights for Consumer Purchase

Rightsholders have two options under the Settlement for setting the sale price of
their Books made available in the Consumer Purchase revenue model: they can set the
10

Exercise of the removal right does not vitiate Rightsholders’
eligibility for the Cash
Payment, described below.
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price themselves (Specified Pricing) (SA § 4.2(b)(i)(1)) or they can rely on the
“
Settlement-Controlled Price”
developed by Google. (SA § 4.2(b)(i)(2)). SettlementControlled Prices will be algorithmically designed by Google to find the optimal revenuemaximizing price for each Book. (SA §§ 4.2(b)(i)(2) & (c)).
Plaintiffs have heard from a number of academic and other authors (e.g.,
university professors) who are interested in making their books freely available to others
through the Settlement. The Settlement Agreement enables Rightsholders to do so. The
Settlement Agreement will support Creative Commons licenses. In addition,
Rightsholders can set the sale price for their Books at zero. In those situations neither
Google nor the Registry will receive revenues from any Consumer Purchase of those
Books.
6.

Establishment of The Book Rights Registry, and Payment for
Notice and Claims Administration.

Google has agreed to pay $34.5 million to fund the newly formed Book Rights
Registry, to pay for notice to the Settlement Class and to pay for claims administration
services. SA § 2.1(c). The Registry will be an independent not-for-profit entity, and all
funds received by the Registry will be for the benefit of Rightsholders. SA § 6.2(a). The
Registry will have a Board of Directors composed at all times of an equal number of
Author Sub-Class and Publisher Sub-Class representatives. SA § 6.2(b). Thus, the
Registry will not, as some have suggested, by controlled by Google. The Registry will
establish and maintain a database of Rightsholders’
contact information and information
regarding Rightsholders’
Books and Inserts. SA § 6.1(b). The Registry will locate
Rightsholders, identify and coordinate payments to Rightsholders, and otherwise
represent the interests of Rightsholders under the Settlement Agreement. Id. The

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Registry will able, with express rightsholder approval, to do deals with anyone, including
competitors of Google.
The Registry will be funded at first by Google’$34.5 million payment (net of
s
notice and claims administration expenses). SA §§ 1.6, 2.1(c), 5.2. Thereafter, the
Registry will also be funded by an administrative fee taken as a percentage of
Rightsholders’
revenues. SA, Attachment C (Plan of Allocation) § 4.2.
7.

Payment For Already Digitized Books.

To settle plaintiffs’
claims for actual infringement, Google has agreed to pay
Rightsholders a minimum of $45 million for Books and Inserts digitized without
permission as of May 5, 2009 (i.e., the original opt-out deadline). SA §§ 2.1(b), 5.1. For
every such work that is claimed by January 5, 2010, Google will make a “
Cash Payment”
of at least $60 per Principal Work, $15 per Entire Insert, and $5 per Partial Insert.11
If more than $45 million is required to pay all of the eligible claims for Cash
Payments, then Google will pay the additional funds necessary to make all such Cash
Payments, with no cap on such additional payments. SA § 5.1(b). If the total amount of
all eligible claims is less than $45 million, the claiming Rightsholders can receive up to
$300 per Principal Work, $75 per Entire Insert, and $25 per Partial Insert. Any
remaining funds thereafter from the $45 million will go to the Registry for operations.
SA, Attachment C (Plan of Allocation) § 3.2.

11

“
Principal Work”
refers to a book’principal written work (such as a novel, or a
s
collection of short stories). SA §1.111. “
Entire Inserts” complete works, such as
are
short stories, forewords and poems. “
Partial Inserts” all other content that meet the
are
definition of an Insert, such as quotes from other works. SA §§ 1.50, 1.100.
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D.

Filed 08/26/13 Page 20 of 31

Author-Publisher Procedures.

Because, for most Books, authors and their publishers each have copyright
interests, the authors’ publishers’
and
respective interests are addressed in the AuthorPublisher Procedures (SA, Attachment A). Among other things, the Author-Publisher
Procedures set forth the authors’ the publishers’
and
respective rights concerning in-print
and out-of-print Books under the Settlement.
1.

In-Print Books.

With respect to in-print books (other than works-for-hire), both the author and the
publisher must agree to include the Book in the GLP; if they do not agree, it will not be
included. Author-Publisher Procedures (“ ) § 5.1. Cash Payments for in-print
A-P”
Books, as well as all revenues earned from Google’future uses of in-print Books, will
s
be paid to the publishers of the Books, who will then pay the authors under the book
publishing contract between the author and the publisher. A-P § 5.5. If an author wishes
to challenge the revenue split offered by the publisher under that contract, the dispute
may (except for Educational Books) be resolved in the Settlement’arbitration process.
s
Id. The A-P also sets forth the respective rights of authors and publishers as to exclusion,
removal, pricing, and changes in Display Uses of in-print Books. A-P §§ 5.2-5.4.
2.

Out-Of-Print Books.

The A-P includes provisions concerning exclusion, removal, control of pricing,
and changes in Display Uses of out-of-print Books, which vary depending on whether the
Book is (1) a work-for-hire under United States copyright law (100% of Cash Payments
and revenues paid by the Registry directly to the publisher), or (2) reverted (100% of
Cash Payments and revenues paid by the Registry directly to the author). A-P § 6.1.

19