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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Cash Payments and future revenues earned for unreverted out-of-print Books will be split
between the author and publisher of the Book as follows: (a) for Books first published
prior to 1987, the Registry will pay 65% to the author and 35% to the publisher; and (b)
for Books first published during or after 1987, the Registry will pay each of the author
and the publisher 50%. A-P § 6.2(c).12 In addition, for Books that are not reverted and
are not works-for-hire, in general, both the author and the publisher have the right to
manage the Books. (See A-P for further details concerning the A-P.)
E.

Other Provisions.
1.

Public Access Service.

The Parties have agreed to provide, upon request, free access to the entire
subscription database at a computer terminal in every public library building in the
United States that requests one and at least one computer terminal at each not-for-profit
higher educational institution. SA §§ 1.66, 1.119, 4.8. Anyone in any urban or small
town library building in the U.S. could have free, full access to the entire database of
Books.
2.

Non-Display Uses.

In addition to the Display Uses, Google will be permitted to make “
Non-Display
Uses” Books, including full-text indexing (without displaying the text), geographic
of
indexing, algorithmic listings of key terms for chapters of Books, and other internal
research. SA §§ 1.91, 3.4.

12

Based on discovery taken by the author plaintiffs, most form book publishing
contracts in the late 1980s began to include express electronic rights grants to the
publisher. Counsel for the authors and publishers thus agreed that authors would receive
a greater revenue split for out of print Books published prior to 1987 than those published
thereafter.
20

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3.

Filed 08/26/13 Page 22 of 31

Security Provisions.

Google and plaintiffs developed security standards to prevent security breaches
and unauthorized use of Google’books database. SA §§ 8.1-8.2 and Attachment D.
s
The SA provides remedies to Rightsholders for security breaches and unauthorized
access. SA §§ 8.3-8.7.
4.

Dispute Resolution Mechanism.

If disputes concerning the Settlement arise among Rightsholders and Google or
the libraries, they will be subject to arbitration. Examples are disputes (1) between
authors and publishers of the same Books; (2) over claimed security breaches; (3) over
whether a Book is in-print, out-of-print, or in the public domain; and (4) over whether
Google or a participating library has made a use of a Book that is not authorized under
the Settlement. See generally SA Article IX. The Settlement Agreement also provides
that the court will have continuing jurisdiction over other disputes concerning the parties’
obligations under the Settlement Agreement. SA § 17.23. Disputes between publishers
are not subject to arbitration.
5.

Non-Exclusive Rights.

The authorizations granted to Google under the Settlement Agreement are nonexclusive only. Rightsholders retain all their rights to use and license their Books in any
way, including ways identical to those authorized to Google. No authorization under the
Settlement constitutes a transfer of any copyright ownership interest in any Book or
Insert. SA §§ 2.4, 3.1(a).
IV.

COPYRIGHT ISSUES
The Settlement has been the subject of substantial discussion. I would like to

21

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elaborate on my remarks in the Executive Summary regarding the Settlement’treatment
s
of so-called “
orphan works,” I will then address the potential effect of including
and
foreign rightsholders in the Settlement Class on U.S. foreign relations.
A.

The Question of “
Orphan Works”

A number of critics of the Google Book Search Settlement have complained that
the Settlement will confer on Google a monopoly over “
orphan works.”These critics
have stated –
without any evidence –
that “
orphan works” include millions of books,
will
comprising anywhere from 50% to 70% of the books covered by the Settlement. These
percentages are over-inflated, principally because at least some of the critics appear to
have equated the term “
out-of-print books”
with “
orphan works,”
which is erroneous,
and, further, because they incorrectly assume that the rightsholders of out-of-print books
are either unknown or cannot be found.
The term “
orphan works,”
however, has no meaning under the Copyright Act; the
Act only recognizes works only as in-copyright or not in-copyright. That term, however,
has been typically understood and used –
both in the context of legislative proposals
considered by the Congress, including this Committee, over the last several years, as well
as by the Copyright Office – refer to a work for which the copyright owner cannot be
to
identified or found (such as a photograph with no attributed photographer).
Contrary to the use of that term by the Settlement’critics, we start with the
s
principle that published books found in U.S. libraries –
unlike many other types of
copyrighted works – generally quite unlikely to be orphan works. They are published
are
works. They have identifiable authors and publishers. Published books include readily
accessible information as to their author, publisher and date of publication.

22

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Moreover, as to all United States works, the Settlement only covers those that are
“
registered”
with the United States Copyright Office. So, at least with respect to United
States works, the Copyright Office registration is available as an important starting point
in attempting to identify and locate the current copyright owner. There is no reason to
believe that a significant number of the copyright owners of books covered by the
Settlement cannot be identified and found – anyone, including would-be competitors
by
of Google – due diligence efforts are made to do so.
if
Prior to the Settlement, at least for purposes of large scale commercial
exploitation, few such efforts have been made. That is because there has been no
commercial market for a collection of out-of-print books, and thus no incentives to
identify rightsholders of out-of-print books or for them to come forward to associate
themselves with their works for purposes of licensing others to use them. Now, for the
first time, the settlement provides just such a product, and brand new incentives for
rightsholders of out-of-print books to participate. Not only have meaningful, ambitious
efforts been made to locate these rightsholders, those efforts will be continued into the
future by the Registry. In addition and importantly, the prospect of earning money under
the Settlement – the very availability of revenues generated by the Settlement –
and
will
provide powerful incentives for rightsholders to come forward to claim their works.
Once they do so, of course, such works would have identifiable copyright owners and
could not be considered to be “
orphans.”
First, approval of the Settlement required the parties to undertake an
unprecedented, worldwide Notice Program that was designed to reach as many members
of the Settlement Class as possible. As a result of the Notice Program, many

23

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rightsholders of out-of-print books have already claimed their books. Because there is no
deadline to claim one’books through the Settlement, it is reasonable to expect that the
s
numbers of claimed out-of-print books will grow exponentially.
Second, one of the Registry’core missions will be to locate rightsholders of outs
of-print books that have not yet been claimed. This is for the purpose of having the
Registry assist them in claiming their works and, ultimately, to pay to them the revenues
they are owed under the Settlement’revenue models.
s
Also, as noted above, the Registry will want to enter into licensing arrangements
with others, not just Google. For this purpose, the Registry and claiming rightsholders
will want as many rightsholders as possible to come forward and authorize the Registry
to include their books in those arrangements. In this way, there will be a more robust set
of books available for license, which will redound to the benefit of all rightsholders..
The goals of the Notice Program and the Registry are achievable precisely
because the settlement creates meaningful incentives for copyright owners of out-of-print
works to claim their books. The new services authorized by the Registry (which include
the subscriptions and consumer purchase options offered by Google, as well as
alternative, even competing products that others may establish) will begin earning
rightsholders new revenue.
Most authors write for two reasons, for their books to be read, and to be
compensated. Because the Settlement has given new exposure and commercial life to
out-of-print books, authors are more likely to claim their books and the Registry will
have a greater chance of finding them.
What does that mean for the so-called “
orphan books?”We’ already learned
ve

24

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through the Settlement’claiming process that many out-of-print books’parents”
s
“
are
alive and claiming their books. And, as “
parent”
rightsholders claim their books, the
number of books that might arguably be considered “
orphans”
will be dramatically
reduced.
Significantly, the Registry will maintain a publicly accessible database of which
books are claimed. The database will also make public who has claimed those books
(except where the claimant has asked that his or her name not be disclosed). This
database will make it far, far easier than at present for anyone to identify rightsholders of
books and obtain permission to use them. The experiences of the Authors Registry and
the ALCS, reported in the Executive Summary, bear this out. Thus, where it might once
have been difficult to find the copyright owners of books it will now become much more
feasible to license out-of-print books, either through the Registry or directly from their
copyright owners.
Of course, there may still be books whose rightsholders prove difficult to find.
The Settlement is not a panacea. But the facts suggest, contrary to the gloomy scenarios
painted by the critics, that the number of such books ultimately will be quite low.
B.

The Settlement is Wholly Consistent with the International
Obligations of the United States

Questions also have been asked as to whether the Settlement complies with the
international treaty obligations of the United States. These issues have been raised under
two provisions of the 1971 Berne Convention for the Protection of Literary & Artistic
Works (the “
Berne Convention” to which the United States adhered effective March 1,
),

25

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1989.13 The first provision is that of national treatment, found in Article 5(1) of the
Berne Convention. The second provision is Article 5(2) of the Berne Convention, which
bans the imposition of certain “
formalities.”Examining both provisions, we believe that
the Settlement is fully consistent with our country’treaty obligations.
s
To begin, the Berne Convention is not itself self-executing in the United States.
In the Berne Convention Implementation Act of 1988 (BCIA), which implemented the
Berne Convention,14 Congress was crystal clear that the Berne Convention itself does not
create any rights or obligations under U.S. law.15 Thus, if any provision of the enacted
laws of the United States is inconsistent with our country’Berne Convention
s
obligations, the only remedy is for another country to take the United States to the
International Court of Justice, or to invoke the dispute resolution provisions set forth in

13

The United States has entered into other international agreements that incorporate the
United States’
Berne Convention obligations by reference, such as the 1994 GATT
TRIPS agreement. However, because these other agreements are derivative of the Berne
obligations, we do not discuss them separately.
14
102 Stat. 2853-2861.
15
Section 2 of the BCIA provides:
(1) The Convention for the Protection of Literary and Artistic Works, signed at
Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions
thereto (hereafter in this Act referred to as the "Berne Convention") are not selfexecuting under the Constitution and laws of the United States.
(2) The obligations of the United States under the Berne Convention may be
performed only pursuant to appropriate domestic law.
(3) The amendments made by this Act, together with the law as it exists on the date of
the enactment of this Act, satisfy the obligations of the United States in adhering
to the Berne Convention and no further rights or interests shall be recognized or
created for that purpose.
Section 3(a) declares:
(a) Relationship with Domestic Law.--The provisions of the Berne Convention-(1) shall be given effect under title 17, as amended by this Act, and any other
relevant provision of Federal or State law, including the common law; and
(2) shall not be enforceable in any action brought pursuant to the provisions of the
Berne Convention itself.
26

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the GATT, leading possibly to a WTO panel. With respect to the pending approval of the
Settlement, the District Court must follow the Copyright Act, and it has no authority to
deviate from it in an effort to comply with its understanding of the United States’
treaty
obligations.
1.

National Treatment

The Settlement is fully consistent with the national treatment principle of Article
5(1) of the Berne Convention,16 which Congress implemented in the BCIA, and is now
enshrined in Section 104 of the Copyright Act, as amended. In the United States, that
principle “
simply assures that if the law of the country of infringement applies to the
scope of substantive copyright protection, that law will be applied uniformly to foreign
and domestic authors.”See Itar-Tass Russian Newspaper Agency v. Russian Kurier, Inc.,
153 F.3d 82, 89 (2d Cir. 1998). Thus, Article 5(1) applies only to national laws granting
substantive rights. A private settlement agreement is, by definition, not a law nor can it
grant substantive statutory rights. As Congress made clear, only Congress can grant such
rights. The Settlement does not provide or grant any substantive copyright rights; only
Congress can do so. Instead, it is the settlement of copyright litigation between private
parties that provides extensive remedies to members of the class.
Most importantly, the Settlement is careful to treat all covered books identically,
without regard to whether their rightsholders are United States or foreign publishers or
authors. Consistent with Section 104 of the Copyright Act, all copyright owners of books

16

Article 5(1) of the Berne Convention provides:
(1) Authors shall enjoy, in respect of works for which they are protected under this
Convention, in countries of the Union other than the country of origin, the rights
which their respective laws do now or may hereafter grant to their nationals, as well
as the rights specially granted by this Convention.
27

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covered by the Settlement, regardless of their nationality, are entitled to exactly the same
rights and receive exactly the same remedies under the Settlement.
2.

Formalities and the Means of Redress

The Settlement and the class action opt-out procedure do not constitute a
prohibited formality within the meaning of Article 5(2) of the Berne Convention.17 The
term “
formality” not defined in the Article. The World Intellectual Property
is
Organization’guide to the Berne Convention provides some guidance. It states: “
s
The
word 'formality' must be understood in the sense of a condition which is necessary for the
right to exist -- administrative obligations laid down by national law, which is not
fulfilled, lead to loss of copyright.”See WIPO Guide to the Berne Convention for the
Protection of Literary and Artistic Works (Paris Act 1971) at 33 (1978). As the WIPO
drafted the Berne Convention and is charged by the United Nations with administering it,
its views should be entitled to great deference.
The process for reviewing and approving class action settlements under Rule
23(b)(3) of the Federal Rules of Civil Procedure necessarily includes a mechanism to
allow class members to opt out. That requirement of federal law is not a formality. It
cannot lead to a loss of statutory copyright protection under the Copyright Act. Nor is
the Settlement itself or the opt-out procedure of Rule 23(b)(3) an administrative
obligation laid down by national law that is necessary for the copyright right to exist.

17

Article 5(1) of the Berne Convention provides:
The enjoyment and the exercise of these rights shall not be subject to any formality;
such enjoyment and such exercise shall be independent of the existence of protection in
the country of origin of the work. Consequently, apart from the provisions of this
Convention, the extent of protection, as well as the means of redress afforded to the
author to protect his rights, shall be governed exclusively by the laws of the country
where protection is claimed.
28

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The Rule constitutes, instead, a procedural device.
The language of Article 5(2) makes clear that such procedural mechanisms –
which are the means by which copyright infringement suits may be brought and resolved
– exclusively within the province of national law and, as such, can be adopted by
fall
Congress and applied by federal courts consistently with the United States’
obligations.
See Article 5(2) (providing that “ extent of protection, as well as the means of redress
the
afforded to the author to protect his rights, shall be governed exclusively by the laws of
the country where protection is claimed [emphasis supplied]).
C.

The Settlement is not “
Legislating”

Some have expressed concern that the Settlement constitutes “
judicial legislating”
or that approval of this particular class action settlement is not otherwise properly within
the province of the federal courts. That is not the case. Whatever one’view of judicial
s
activism, a class action settlement negotiated by parties to a lawsuit and approved by a
federal court only binds members of the class who have chosen not to opt out. It does not
bind – supplant the role of –
or
Congress.
Moreover, settlements of litigation do not establish rights or obligations of general
applicability, which is, by contrast, in the very nature of statutes. In this case, the
Settlement only pertains to the rights of class members vis-à-vis Google, which is
obtaining a non-exclusive license from rightsholders who have chosen to remain in the
Settlement.
Furthermore, the class action device is widely used in all manner of state and
federal common law and statutory claims. It has also been used in the context of federal
copyright claims. Such actions have been settled, and those settlements are subject to the

29

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requirements of the Federal Rules and to judicial decisions interpreting such Rules.
Congress has not chosen to exempt copyright infringement actions from the Federal
Rules that authorize the use of the class action device in appropriate circumstances.
Parties utilizing a congressionally created procedural device, and courts approving class
action settlements, are, therefore, fully adhering to federal law.
Finally, nothing in the Settlement prevents Congress from legislating in the future
as broadly as it wishes. Congress could, for example, pass orphan works legislation, to
enable users to make use of a work after a due diligence effort to identify and locate the
copyright owner.

30

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EXHIBIT 9

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page 1

1

UNITED STATES DISTRI CT COURT

2

SO:JTHERN DISTRICT Of NEW YOR3:

3
4

THE .ll..UTHORS GUI LD,
al . ,

I NC ., e t
) Civil P.ction No .

I 05 - CV- 8136 (DC I
5

Plaintiffs ,

vs .

6

)
I

)
I

7

I

GOOGLE , INC. ,

8

Defendant .

I
)

----------------------------1
9

Thursday , .ll"pr i
9 : 08 a . m.

1~+ ,

2012

10
11

]2

13

14
]5

Confidentia l Videotaped Deposition
AIKEN , held at the offices of
Milberg , 1 LP, One Penn Plaza , New York ,
Ne\oJ York , pursuant to Rul e 30 (b ) ( 6)
No t ice , before Otis Davis , a Nota.ry
of

PAU~

Publi_ oC Lhe SLrlLe oC New YC k .
c
ll

16

17

18
19

20
21

22
23

24
2S

( ~442577 1

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page 115
1

Q.

So if I was doing genealogical research

2

on my great - grandmother , she might ce mentioned in a

3

book , but not ide:1tified ao

4

catalog ent:::-y pertaining to ,,:hat book ; is that right?

J.

topic in the cord

5

p.. .

That ' 3 correct .

6

Q.

SO lr I Wf:;r-f?, cOllcluc Li ny slJ(:L ljp.llealoyical

7

research on my great - grandmo :her and

8

every book in which her name had been mentioned , in

9

the absence of Google Books , would there be a way for

10

me to do that other than by reading every book in the

11

library that might possibly include a re=erence to

12

her?

13

MR . BONI :

14

You Cdll

15

.~ .

Yes .

Objec: to

wa~ted

:0 find

t~rm .

an~""er .

Except for Google ' s bold act of

16

infring ~ ng

17

able La f i nd your- <,)L"
eaL -YL-aIldmo t her ' s uame ill au

18

out - ot - pr i nt in - copyright

19
20

O.

millions of copyrights , you would not be

Do

yO"';

boo ~<.

think Google ' s Library Project has

helped the sale of books?

21

.1\ .

No .

22

Q.

Would you expect Google ' s Library Project

23

to have had any positive or negative effect on book

24

sales?

25

.n. .

I would expect i: to have a nega:ive

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page 136
1

in your testimony.
Are you a·..·are of any instance in Hhich

2

3

Google ' s securi t y hew b e en compromised VI'ith respect

4

to LIe digital copies of boo :<s made in connection

5

with the Library Project?

6

, .
;

YP.::; _

7

Q.

Wha t such .:'..nstances are yell aware of?

8

.r:. . .

Early on after the announcement of

9

Google ' s Library Project , I recall that some hackers

10

had developed a program to basical l y repeatedly

11

search the partic".;lar book and pull the

12

esse~tially

13

database

14

sedLch .

15

Q.

pull the string of text out of Google ' s
a t it l e through a briet

to~

~eriod

ot

Do yo u know whether it ' s :t:ossible to

16

obtain a complete copy of a book that is included

17

wi. Lhi.Jl Google

18

display by virtue of ru nning such repetitive

19

searches?

Book~ '

~earch

.te~ ul L~

ill SlliIJVe L

20

p•
••

Tha t ' s ''''hat I was j ust talking about .

21

Q.

Do you know whether Googl e blacklists any

22

portions of books that are included in snippet

23

display?

24

.r:. .

No .

25

Q.

Do

yO"';

know whether Gooqle tas any

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page 137
1

security measures in p:"ace to prevent tte repetitive

2

running of searches :'n order ":0 tey to aggregate

3

snippets from

4

.1\ .

5

6
7

~

sing:" e book?

My understa nding from engineers at Google

is L'1at they do hav e such programs in place .
Q.

Do yo u krH)W wheU leL those fnog L i'lIlIS

are

effective?

8

.r:. . .

No .

9

Q.

Are you aware of any instance in which

10

any secur i ty regime that

11

book made as part of the Google Library Project has

12

been compromised?
MR . BONI :

13

14

Q.

a digital copy at 3

Other ,,:han vlhat r.e just

l eslifie u La?

15

pro~ects

16

Ot her than the instance of running

multiple wo::::d searchs o n Google Books i tself .

17

l\ .

Could you Le VeaL t haL olle mOL e Lime .

18

Q.

Sure .

19

Are you a ..... are of any instance in vlhich

20

any security meas u res protec":ing the di · ital copies
;

21

of boo ks made as part of the Google Library ?rojcct

22

have been compromised other t han the instcnce you

23

descri : e d of running searches for multiple words that
D

24

appear within a sing l e book on Google Books itself?

25

.n. .

No .

I should say ,

I believe there vlere

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page 138
1

multiple such attempt::: done and successfully done to

2

pullout e - books from G:Jogle ' s program

3

project .

4

project .

5

Q.

6

LesulLed

7

the Internet?

8

.r:. . .

I

in the

earl~z'

don ' t kno ..... ,,'ha t happened lo.ter in the

Do you know whether any of those attempts
l fl

t he Ull dULhoL i zed pub] LCdL:i o n o f

i'I

hook 011

No , I don ' t .

NS . DURIE :

9
10

Why don ' t we ta ke a break .

THE V I DEOGRF.PEER :

Hece new marks the end

11

of tape 3 of t he

12

time is 2 : 25 p . m., 'Ne ' re now off the record .

depos~tion

of Mr . Paul Aiken .

13

(Recess taken . )

14

THE VIDEOGRJl.PEER :

The

15

begi~ning

16

Ai ken .

17

HeL'e

now iIlc.L k :::;

lhe

of tape 4 of the deposition of Mr . Paul

Leeonl .

The time is 2 : 35 p . m., we ' re back on the

18

MS . DURIE :

Let me have marked as the

19

next exhibit a copy of the tax return relating to The

20

Authors Guild .
(Aiken

21
22

23
24

25

Exh ~ bit

I , 2009 Aut hors Guild tax

return , mar ked for identificat ion , as of this date . )
Q.

Mr . Aiken , do you recognize t.Jhat has been

marked as Exhibit. 7?

.n.. .

Yes .

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page 186
1

used , over books

2

from Amazon should be taken with a

3

becaus e

4

past .

5

types of books and hm'li sales might ce af:ected .

~~azon

~ot

in the program .

Ttose figures

grai~

0: salt

plays its cards very close to the

':'hey would never provide information on t he

Pub l isher~

6

have A tso toJd lII e lhi'l :-. it

7

increases sales, but they ' ve often been skep-:ical

8

about ho,,' much and 'h'hether or not those ::igures are

9

in

a~y

way ar t ificia':"ly affec t. ed by Arrazon in

10

changing i ts search results within

11

whether or no t it ' s in the Search Inside the Book

12

program .

13

done behind the scenes.

14

Q.

.~azon

based on

I don ' t knm·, one way or another t>lhat may be

Do yo u lhlnk i l ' :::;

lIlllLe

likely lhan nol

15

that SearcJ1. Inside the Book on average r.as a net

16

positive effect on sales?

17

l\ .

Ye::; .

18

Q.

Would you agree -:hat Search Inside t he

19

Book has crea t ed a brows able bookstore?
MR . HONI :

20
21

l\ .

22
23

24
25

No .
f\iIR .

p..• •

Objec-: to form .

BOtH :

You can ansvler .

No .
NS . DURIE :

Let me ha -Je marked

as the

next exhibit a multipaqe document , the first page of

A-1419
Case 1:05-cv-08136-DC Document 1075-10

Filed 08/26/13 Page 1 of 6

EXHIBIT 10

A-1420
Case 1:05-cv-08136-DC Document 1075-10

Filed 08/26/13 Page 2 of 6

UNJTED STA'l'P,S DISTR TC'T' r:OtJRT

SOUTHERN DISTRICT OF NEW YDRK

2 THE .z\UTIIORS GUILD , I NC " et al. ,
------------------------------------------X
3
PlJI..:NTIFFS ,

4

- against. -

5

Case No :
05CVS136 (DC)

6

7
8

GOOGLE INC "
DEFENDANT .

------------------------------------------X

9

10

CATE : January 4 , 2012
'

11

TIME : 1 : 05 P . M.

12
13

14

DEPOSITION o[ a Plainti[f, BETTY I..:I::"'ES ,

t aken

IS

by the Defendants , pursuant to a Not:"ce and to the

16

Federal Rules of Civ:"l Procedure , he_d at the oft ices at

17

r-IILBERG , LLP , One pennsylvania Plaza , New York , New York

18

10119 , befor-e Deborah Garz:l.niti , a Notary Public of the

19

S t ate of New York .

20
2]

22
23
24
25

DIAMOND FEPORTIKG , INC . - illfo@diamolld!efJOLLiIly . colll
718 . 624 . 7200
1

A-1421
Case 1:05-cv-08136-DC Document 1075-10

Filed 08/26/13 Page 3 of 6

D. MILES
own" thp. r.i ghts r.o, t.h" 7. t" my r i gh 7. ann th,..lt

r"

the

~ ight

2 of every author , so .
3

Q.

4

.r:. . Amcng others .

5

Q.

Do you consider t ha t an economic right?

Have you lost any sales of books as a

6 result of Google Books?
7

.n. .

I have no "'ay of kno'tling that .

8

'::1 .

Do you think that Google scanning and a

9 snippe 'C. display of your out of print books has resulted
10

in lost. sales?
MR . BCNI :

11

12

Objection to form .

You can

answer .

13

l\ .

I don. r t know .

14

Q.

Do YOIl Lhink Lhal. Google scannIng and a

IS snippe'C. display of your out of print books has resulted
16

in economic harm to you in the form of lost sales?

17

A.

No .

18

'J .

Have you dor.e anything to try to find out

19

whether there ha'''e been any lost sales?

20

.,.

No .

21

Q.

Are any of your books currently in print?

22

A.

I t is a li ttle unclear .

23

out of print.

24

versions Clnd not in ours , an.d publishers he l d on to the

25

caLego!.'}' In p cinl. as long iiS LLey po:-;sibly

Most of them a::e

Some of :.heJ'l are in print 1n certain

Cdll .

DIAMOND FEPORTIKG , INC . - info@diamond!ef,JorLlny . com
718 . 624 . 7200
14

A-1422
Case 1:05-cv-08136-DC Document 1075-10

Filed 08/26/13 Page 4 of 6

2'

D. MILes
m.1rkr.ci ,;!'; Miles Z,xh.ihit :: for irlr.n-.if;(;,')t. ir:n

.,~

of this

2 date by the Reporter . )

CJ .

3

I have put in front of

4 marked as Miles Exhibit 2 .
5

~·ou

wha.t has been

Do you recognize what is

dep leted here'?

6

A.

Yes .

7

Q.

What is it?

8

.,.

A page from the book cal':'ed The Real Me .

9

10
11

I don ' t

know if i t is a full
Q.

hmazon logo .

page

or not , actually not .

In the up?e= right corner do you see the
It is a little dim.

12

A.

It i3 too dim .

13

Q.

Do you see in the upper right corner you

14

see Look Inside?

Tl:e upper le[\. corner .

Sorry .

I"

.

,.

Yes .

16

Q.

Have you used the Look Inside teature ?

17

A.

No .

10

Q.

Do you knovl tha:. this mt:.ch of a page of

19

The Real "e was available to be viewed on Amazon . com?

20

l\ .

No .

21

Q.

Do you object to Amazon . com of making

22

23

this much of a page available on Amaz::m . corr,?

A.

As I just said , the usua:" small bit is

24 what I expect and would prefer to see .
25

Q.

Do you t.hink Lhdl. the d Vdlldbill ty c[ as

DIAMOND REPORTI KG ,

INC . - ill[u(Juid!llUlldn~fJOL· li H Y . com
718 . 624 . 7200
24

A-1423
Case 1:05-cv-08136-DC Document 1075-10

Filed 08/26/13 Page 5 of 6
25

D. MILES
nmr.h text ,'s YOIl see h(';r0. :>n Exhi.hit 2 could h;n:m sales
2

of The Real He?

3

.~ .

Oh , probably not.

4

Q.

Why not?

5

A.

we l l , i t gi'les a fla'vcr o f :.he style .

6

Q.

Any other reason '?

7

.~ . No .
,~ .
Did

S

you autr.orize ll.mazor. to display L'lis

9 much of a page of Tr.e Real Me on Amazon . corr.?

10

A.

No .

11

Q.

Do you knOVl if anyone did?

12

.n. , No , I don ' t .

13

Q.

Do you knOvl if the The }'I.uthers Guild?

14

,t>"

1 doubt it. .

IS

MR . BCN I:

16

want .

Don ' t guess , Betty .

Don ' t dC-UDt or not doubt .

17

A.

18

M BeN l :
R.

19

I

know .

do~ ' t

He doesn ' t wan t your guesses .

lIe

wants to know \to'hat you lm O"I .

20
21

Say what you

Q.

Looking again at Exhibit 2 , you said that

this particular

e ~: cerpt

22 objected to because

:.t

,,'asn ' t something that you

gave a flavor C)f the book .

Is

23 there any
24
25

A.

I didn ' t say -- first I said I thought I

didn ' L ubject to it ,

then second you said why Ivould

DIAMOND FEPORT I KG , INC . - info@diamond!ef,JoLL.i.ny . com
718 . 624 . 720D
25

A-1424
Case 1:05-cv-08136-DC Document 1075-10

Filed 08/26/13 Page 6 of 6
40

D. MILES
Q.
2

How?

MR . BCNl :

The search for 1'1.nnic is t he

3 question.
4

.r:. .

5

MR . BCN 1 :

6

Yes .
Make sure you understand the

question .

.n. .

7

I dO:1 ' t understand .

That ' s the key vlord

8 for the search .
9

O.

Yes .

10

A.

No , I don ' t know .

11

Q.

Focusing

12

yo~r

attention 0:1

~ he

three

snip;::et.s that are sr.ONn on the first page cf Exh i bit 8 ,

13 cou l d a person read these snippets and then :-lot need to
14

buy The Trouble WiLL ThirL=€n?

IS

MR . BCNI :

16

A.

That ' s true .

18

(;:) ,

Sorry .

19

A.

We did go ttrough that earlier .

20

Q.

Is it r ight that r eading these three

17

Asked and answel:ed .
Yes, we did go through

that .

What was the answer?

21

snippet.s is not a st:bstitute of need :' ng to buy a copy of

22

The Trouble With Thirteen?

23

,z" ,

Yes ,

24

Cl .

Turning to the fourth page of Exhibit 8 ,

25

this

J.S

d.

simildr weD IJage , but. you will :-;ee t.hal. t.lie

DIAMOND FEPORTIKG , INC . - illfo@diamolld!ef,JOLLiIly . colll
718 . 624 . 720D
49

A-1425
Case 1:05-cv-08136-DC Document 1075-11

Filed 08/26/13 Page 1 of 7

EXHIBIT 11

A-1426
Case 1:05-cv-08136-DC Document 1075-11

Filed 08/26/13 Page 2 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
The Authors Guild, et al.

Plaintiffs,

Master File No. NO. 05 CV 8136·DC

v.

Google Inc.,

Defendant.
PLAINTIFFS' RESPONSES AND OBJECTIONS TO
DEFENDANT GOOGLE INC.'S FIRST SET OF INTERROGATORIF.S TO
PLAINTIFFS THE AUTHORS GUILD, INC., JIM BOUTON, JOSEPH GOULDEN A'!D
BETTY MILES

Pun;wmt io Rult::s 26 and 33 oflhe Federal Rult:s of Civil Procedure, Plaintiffs hereby

respond and object to Defendant Coogle Inc.'s First Set of Interrogatories to Plaintiffs The
Authors Guild, Inc., Jim Bouton, Joseph Goulden and Betty Miles.

General Objections
I.

Plaintiffs generally object to the Interrogatories and their instructions to the extent

that they seek infOIm<ltion not discoverable under, or impose procedmes nol required by, the

Federal Rules of Civil Procedure or the Local Rules of the Southern District of New York.

2.

Plaintiffs generally object to the Interrogatories to the extent that they seek the

disclosure ofinfonnation protected by the attorney-client privilege, the attorney work product
docbine and/or any other applicable privilege or protection. Responses hereunder shall not
include infonnation protected by such privileges or doctrines.
3.

Plaintiffs generally object to the Interrogatories to the extent they seek

iniormation that may be ascertained by Googlc Inc. with substantially the same burden as
plaintiffs.

A-1427
Case 1:05-cv-08136-DC Document 1075-11
4.

Filed 08/26/13 Page 3 of 7

PlaintitTs object to the Interrogatories on the ground that the term "YOUR

BOOKS," used throughout the IlItelTOgatories, is lIo t defined .
5.

Plaintiffs reserve the right to supplement and1 amend the specific responses set
0r

fo rth below, and to rely on additional facts and law.

RESPONSES
INTERROGATORY I:
Jdentify all factual and legal bases supporti ng Your contention that Google 's Library
Project is not fair use.

Response:
In addition to the

Gener~l

Objections, plainti ffs object to this Interrogatory on the

grounds that the word "all" is overbroad and unduly burdensome in this context. \Vithout
waiving these objections, plaintiffs respond as follows:
A.

Googlt::\; Libnlry Project iTl vohies the full owing illrrirl gemenls of copyright
(I)

Google digitally copies, and converts into separate, machine readable
digital text copies, in-copyright books in their entirety fo r its own uses

without the permission oflhe copyright owners in violation of 17 U.S.C.

S

106(1 );

(2)

Google distributes digital copies of in-oopyright books in their entirety to
libraries "",ithout the pennission of the copyright owners in violation of 17
U.S.c.

(3)

! 106(3);

Google publicly displays verbatim expression from in-copyright books on
the Internet in response to requests by

u.ser~

of its website without the

pennission of the copyright owners in violation of 17 U.S.c. § 106(5).
B.

The above infringements are not protected by the fair use doctrine of 17 U.S.C.

§ 107:
2

A-1428
Case 1:05-cv-08136-DC Document 1075-11

Filed 08/26/13 Page 4 of 7

IlWERROGATORY 6:
Describe the value of each of YOUR BOOKS.

Response:
Without waving the General Objections, plaintiffs respond that books have value as

works of creative authorship that are protected by copyright. Authors can derive a financial
benefit from this value by selling or licensing their books, including to publishers, consumers,
businesses, libraries, collective licensees, search engines, databases and other persons and
entities seeking to purchase, copy, display or otherwise use books databases, books or excerpts
of books.

INTERROGATORY 7:

Identify each effect that Google's conduct has had on the value of each of YOUR
BOOKS or the Books of any member of the putative class, including a description of each such
effect and a statement of all facts supporting Your contention that Google's conduct has had each
sueh effect.

Response:
In addition to the General Objections, plaintiffs object to this Interrogatory on the
grounds that the words "caeh" and "all" arc overbroad and unduly burdensome in this context.
Without waiving these objections, plaintiffs respond as follows: See the response to
Interrogatory I.

INTERROGATORY 8:
Describe the purpose of each ofYOllR BOOKS.

In addition to the General Objections, plaintiifs object to this Interrogatory on the
grounds that it seeks infonnation that is not relevant or reasonabl y calculated to lead to the

discovery 0 f admissible t:vidence. Plaill ti ITs further object thai lhe word "purpose" is unclear iTl

13

A-1429
Case 1:05-cv-08136-DC Document 1075-11

Filed 08/26/13 Page 5 of 7

this context. Without waiving these objections, plaintiffs respond that the purpose of books in
general is to entertain, educate, teach and/or express thoughts, feelings and ideas.

INTERROGATORY 9:
Describe the nature of eaeh of YOUR BOOKS.

ResPOnse:
Without waiving thc General Objections, plflintiffs respond that, in thc context of 17
U.S .c. § 107(2), the nature of the books copied , distributed and displayed by Google is fiction

and nonfiction books, and in-print and out-of-print books.

INTERROGATORY 10:
For eaeh of YOUR BOOKS, state whether 3uch book is published or unpublished.

Response:
"
Ihe books at issue are Jlubli shed.

INTERROGATORY 11:
Describe the purpose and character ofGoog!e's Library Project, including a statement of
all factual and legal bases supporting your response.
Response:
In addition to the General Objections, plaintiffs object to this Interrogatory on the

grounds that the word "all" is overbroad and unduly burdensome in this context \Vithout
waiving these objections, plaintiff,; respond as follows:
The purpose and character of Google's Library Project is commercial. Google seeks to
copy all offline print books (as well as other offline content such as journals and government
works), whether in-copyright or in the public domain, and make them available for search on the
Internet in order to benefit its commercial search engine and gain a competitive advantage over
ils rivals in the search engine rmrrket by having Hlore: content to search, th ereby inLTt!asing its

14

A-1430
Case 1:05-cv-08136-DC Document 1075-11

Filed 08/26/13 Page 6 of 7

usership, with the ultimate goal ofmcreasing its advertising revenues from its increased usership.
See also the response to Interrogatory I above.

INTERROGATORY 12:
Describe the amount and substantiality of YOUR BOOKS used in Google's Library
Project, including a statement of all factual and legal bases supporting your respom:e.

Response:
In addition to the General Objections, plaintiffs object to this Interrogatory on the
grounds that the word "all" is overbroad and unduly burdensome in this context Without
waiving these objections, plaintiffs respond as foll ows: See the response to Interrogatory I
above.

INTERROGATORY 13:
If you contend that Coogle's Library Project is commercial in nature, identify all factual
and legal bases for that contention,

Response:
In addition to the General Objections, plaintiffs object to this Interrogatory on the
grounds that the word "all" is overbroad and unduly burdensome in this context. Without
waiving these objections, plainti ffs respond as follow s:
Google's Library Project, and the copying, distribution and display of books by Google
in cOlUlectioll with its Library Proj ect, are conunercial in nature. See also the responses to
Inlerrogalories 1 and 11 above.

15

A-1431
Case 1:05-cv-08136-DC Document 1075-11

Filed 08/26/13 Page 7 of 7

VERIFICATION
J am the Executive Director of plaintiff111e Authors Guild, Inc. Pursuarlt to 28 U.S.c. §
1746, I declare under penalty of perjury that tbe .responses ofplaintiffThc Authors Guild) Inc.
Plaintiffs' Responses 8J\d Objections to Defendan: Google Inc.'s First Sct ofInterrogatori.es to
Plaintiffs The Authors Cnlild Jnc., Jim Bouton, Joseph Goulden and Bc:tty Miles arc true and

correct to the best of my knowledge, infonnation av~

D.ted:

~(202017_

~ .... -

Paul Aiken

jJl

A-1432
Case 1:05-cv-08136-DC Document 1075-12

Filed 08/26/13 Page 1 of 3

EXHIBIT 12

A-1433
Case 1:05-cv-08136-DC Document 1075-12

Filed 08/26/13 Page 2 of 3

page 1
1

2
3

UNI TED STATES DISTRICT COURT
SOUT HERN DISTRICT OP NEW YOR~

------------------------------------------ x
THE AUTHOJ{::; GUILU , INC ", e r. al . ,

4
PLAINTIF?S ,

5

Case No :

- against -

b

05CV8136

IDC)

7

8

GOOGLE INC " ,

9

DEf'ENDAN'l' "

------------------------------------------ X
10
December 15 ,

11

U.A.':' £ :

12

2011

T I ME : 1: 00 P . M.

13

14
15

DEPOSIT:ON of a vlitness ,

JH1 BOUTON ,

en

16

behalt ot the Plaintltts , t aken by the Detendants ,

17

pIH' SUiHI L Lo

18

Procedu..::-e , held at the offices of MILBERG , LLP , One

19

Pennsylvania Plaza , New YOL' k , New Y8rk 10119 , Defore

20

Deoorah Garzaniti, a Notary Public of the State cf Net...

21

YOcko

22
23

24
25

i"I

Not i ce i'lnd t o the F'edBc d ]

Rll.les of C":ivi l

A-1434
Case 1:05-cv-08136-DC Document 1075-12

Filed 08/26/13 Page 3 of 3

page 29
1

Do you think that you have su:fered any

2

economic

3

books in Google Books?

ha~m

from the display of any quotes from your

4

A.

I don ' t know .

5

Q.

00 you kno"" whethet: any other members of

fi

t he c l ass havA

7

the display of quotes from their books in Goggle Bcoks?

su[re~~d

any 8conoll ri.c hrl~rrl as a

L8su l L o f

8

A.

I don ' t know if t hey have or not .

9

Q.

~et

me

j~st

caution you .

We are speaking

10

over each other a litt_E bit , which is a normal thing to

11

do in every day conversation .

12

Court Reporter because she is trying to ta.ke it down .

13

Even though you may kno\.\' v.'ha": I

14

my 4 ueslion is ,

15

for me to finish

It makes it hard for the

am going to say and what

iL ,.... i l~ help her ouL a lal if yo u wail
3peak~ng

before you give your answer .

16

A.

Got it .

17

Q.

VeL'y guu d .

18

Do you have an understanding that some

19

members of the class are academics ·",he are also authers?

20

A.

I assume some of them are .

21

Q.

Do you have a vie"l as to \vhether the

22

ability to use Google Books t o conduct secrches is a

23

benefit to those academic

24
25

HR . BONI :

au~hors?

Object t:o the ferm .

Can we get a

workinq ,j efinitio::1 of academics and ther. can vle qet some

A-1435
Case 1:05-cv-08136-DC Document 1075-13

Filed 08/26/13 Page 1 of 10

EXHIBIT 13

A-1436
Case 1:05-cv-08136-DC Document 1075-13

Filed 08/26/13 Page 2 of 10

1
1

UNITED STATES DISTRICT COURT

2

SOUTHERN DISTRI CT OF NEW YORK

3
4

5

THE AUTHORS GUILD, et alA
Plaintiffs

6
7

vs.

8

Civil Action No.

GOOGLE, INC.

1.:200Scv081.36

9

Defendant

!

10
11

12
13

14

The Deposition of JOSEPH GOULDEN was held on

15

Friday, January 6,

2 012, comme ncing a t

12:57 p . mo, at

16

t he Of fices of Go re Brothe r s Repor t ing «

17

Vide o conferencing, 1025 Connec ticut Avenue, N.W., Sui t e

18

1000 . Farragut Square. Washington. D.C. 20036. before

19

Christine A . Gonzalez, CSR, RPR, a Notary Public .

20
21
22
23

24

25

REPORTED BY:

Chr i s t ine A. Gonzalez,

CSR, RPR

Gore Brothers Reporting & Videoconferencing
4108373027 - Nationwide - www.gorebrothers.com

A-1437
Case 1:05-cv-08136-DC Document 1075-13

Filed 08/26/13 Page 3 of 10

38
1

BY MR.

2

Q.

3

GRATZ:

Have you been harmed by Google's program of

scanning books?

4

A.

I have no way of knowing .

5

Q.

So you don't know one way or the other?

6

A.

No .

Let me make an addition to that .

I

am

7

harmed by the fact that Google aold my material, put it

8

in digital form,

9

is something that took away something I owned; without

10
11

my permission,

Q.

12
13

That

and gave it away for their profit .

How has that harmed you?
MR.

A.

and gave this to other libraries.

BONI:

Object to form .

One must protect copyrights.

14

publishing.

15

That is a rule of

Court and d e fend my own copyrigh t s.

16

BY MR.

17

Q.

20

So it's a matter of principle?

A.

secondarily ; a matter of financial protect i on.
BY MR.

22

Q.

24

25

Ob j ect t o form.

It's a matter primarily of principle and,

21

23

GRATZ:

MR. BONI:

18
19

A couple times I had occasion to go to the

GRATZ:

Have you been financially harmed by Goog l e's

ac t ions?
A.

As I said, I d o no t know, as of yet .

t he existenc e of this digi t a l

But with

l ibrary , I'm nervous about

Gore Brothers Reporting & Videoconferencing
4108373027 - Nationwide - www.gorebrothers.com

A-1438
Case 1:05-cv-08136-DC Document 1075-13

Filed 08/26/13 Page 4 of 10

39
1
2

3

it.
Q.

Have you been financially benefited by

Google's action?

4

A.

I don't know.

5

Q.

Have you sold additional books as a result of

6

the existence of Google books?
MR. BONI:

7
8

A.

9

BY MR.

10

11

Have no way of knowing.

Q.

Object to form.

Not that I know of.
GRATZ:

You said that you have gone to court to defend

your copyrights in the past?

12

A.

Yes.

13

Q.

What were those situations?

14

A.

First was a book. my book. "The Money Lawyers."

15

Soon thereafter, an acquaintance who had reviewed that

16

book for the Washington Post told me he j ust read a book

17

called "The Harvard Mystique- by a man named Bnrico Hank

18

Lopez , which argued, essentially, people who graduated

19

from Harvard were superior to the rest of us, and he

20

picked up -- you're a Harvard graduate?

21

Q.

I

22

A.

He picked up large chunks of "The Super lawyers"

am not.

On the advice of my agent, I

23

without our per.mission.

24

retained a lawyer in New York who specialized in

25

literary affairs. and we collected settlement from the
Gore Brothers Reporting & Videoconferencing
4108373027 - Nationwide - www.gorebrothers.com

A-1439
Case 1:05-cv-08136-DC Document 1075-13

Filed 08/26/13 Page 5 of 10

46

1

Korea,

2

disputes?
A.

3

No.
MR.

4

5

have you been engaged in any other copyright

BONI:

Want to take a -- unless you're in

the middle of something, take about five minutes or so.
Yeah .

6

THE WITNESS:

7

(Whereupon, a recess was held.)

8

BY MR.

9

Q.

10

GRATZ:

Back on the record.

We're back from a break.

Has anyone decided not to buy one of your books

11

because they were able to see i t in snippet view on

12

Google books?
A.

13

I have not the slightest idea.

Object to

14
15

You've answered.

Fine.

16

BY MR.

17

Q.

18

fo~.

GRATZ:

Is reading three snippets from pages of your

book a substitute for buying the book?

19

MR.

BONI:

Object to form .

You can answer .

No.

20

A.

21

BY MR.

22

Q.

GRATZ:

Do you object to either Google or libraries,

23

without displaying any text from your book, allowing

24

people to search for words in the full text and telling

25

them what page those words appear on?

Gore Brothers Reporting & Videoconferencing
4108373027 - Nationwide - www.gorebrothers.com

A-1440
Case 1:05-cv-08136-DC Document 1075-13

Filed 08/26/13 Page 6 of 10

50
1

2

A.

I've not raised the index question with any

other writers.

3

BY MR.

4

Q.

GRATZ:

Other than Mr. Dickson and others who were at

5

some time a named plaintiff in this case, have you

6

spoken with other writers who do obj e ct to Google's

7

scanning and snippet display?

8

A.

Over the years, yes.

9

Q.

About how many?

10

A.

This i s a guesstimate .

11

Q.

Did they say why they objected to Google's

12
13

20,

30 .

scanning program?

A.

For the same reason I do.

They -- Google is

14

stealing things that don't belong to Google for

15

comme rcial purposes.

16

Q.

Do you think there are any authors who would be

17

harmed if the Court ordered Go ogle t o shut down the

18

snippet display feature of Google books?

19

MR .

BONI:

Object to the form.

20

A.

21

BY MR.

22

Q.

23

in t o print?

24

A.

Yes .

25

Q.

What boo ks are those?

Have no way of kno wi ng.
GRATZ:

Have any of your out-of-print books came back

Gore Brothers Reporting & Videoconferencing
4108373027 - Nationwide - www.gorebrothers.com

A-1441
Case 1:05-cv-08136-DC Document 1075-13

Filed 08/26/13 Page 7 of 10

51
1

A.

Two.

One was liThe Dictionary of Espionage,

II

2

which I published under the name of Henry S.A. Becket.

3

B-e-c-k-e-t. in 1982.

4

being reproduced in a expanded edition this very month

5

by Dover Publications.

It's later than that.

The second hook was "Korea:

6

That is

The Untold Story

In December, I signed a contract with a

7

of the War."

8

publisher in Shanghai for a Chinese language edition of

9

that book. and that's gonna be published at a date not

10

yet established .

11

Q.

Any others?

12

A.

None that come to mind immediately.

13

Q.

Other than -- am I right you testified earlier

14

that you understood "The Superlawyers" and "Korea" to

15

have been scanned by Google?

16

A.

My understanding is they have.

17

Q.

Do you know whether any of your other books

18

have been scanned by Google?

19

A.

live not checked to find out, so I donlt know.

20

Q.

What were the circumstances -- what caused "The

21

Dictionary of Espionage" to come back into print?

22
23

MR.

A.

BONI:

Object to form.

Dover was looking for books in the Washington

24

area, and one of their acquisition editors visited the

25

International Spy Museum.

He asked the director Peter

Gore Brothers Reporting & Videoconferencing
4108373027 - Nationwide - www.gorebrothers.com

A-1442
Case 1:05-cv-08136-DC Document 1075-13

Filed 08/26/13 Page 8 of 10

59

1

co-author -The News Manipulators" contributed within the

2

scope of your employment at Accuracy in Media?

3

A.

Yes, i t was.

4

Q.

Are all of your books nonfiction?

5

A.

Yes.

6

Q.

What is the purpose for which you wrote your

7

books?
MR.

8
9

10

A.

Object to form.

To make a living and to satisfy my long-time

desire to be a writer.

11

BY MR.

12

Q.

GRATZ:

Are your books works of journalism?
MR. BONI:

13
14

A.

15

BY MR.

16

Q.

17

BONI:

Object to form.

No.
GRATZ:

You have written works of journalism; is that

right?

18

A.

I was a newspaperman for ten years.

19

Q.

What is the difference between your books and

20
21

what you consider journalism?
A.

Journalism Beems to be sort of -- it's not

22

the in-depth research that you would do for a book.

23

There's a difference between what I write and what is

24

called journalism.

25

Q.

Because the depth of research.

for example,

Gore Brothers Reporting & Videoconferencing
4108373027 - Nationwide - www.gorebrothers.com

A-1443
Case 1:05-cv-08136-DC Document 1075-13

Filed 08/26/13 Page 9 of 10

73

1
2

yet reverted to you?
A.

Again.

this is another publisher out of

3

business who sent me a crate of books, and there may

4

have been a

letter saying IIItis Yours . "

5

Q.

Did you retain that letter?

6

A.

No.

7

Q.

Did you keep it?

8
9
10

Do you have a recollection of there being such
a letter or was your previous answer based on sort of

thinking there might have been such a letter?

11

A.

There might have been .

12

Q.

But you donlt recall one way or another whether

13

there was?

14

A.

No.

15

Q.

All of your books are out of printi is that

16

right?

17

A.

With two exceptions we noted earlier.

18

Q.

And those two exceptions are "The Dictionary of

19

Espionage ll being reprinted by Dover and the Chinese

20

version of "Korea"?

21

A.

Correct.

22

Q.

Have you had any e-mail correspondence

23

regarding this litigation with anyone other than your

24

lawyers?

25

A.

I notified Paul Dickson last week that this

Gore Brothers Reporting & Videoconferencing
4108373027 - Nationwide - www.gorebrothers.com

A-1444
Case 1:05-cv-08136-DC Document 1075-13

Filed 08/26/13 Page 10 of 10

74

1

deposition had been scheduled, as a matter of

2

informa tion for him.

3

Q.

Other than your e-mail last week with Paul

4

Dickson regarding this deposition, have you had any

5

other e-mail correspondence regarding this litigation

6

with anyone other than your lawyers?

7

A.

8

e-mail.

9

Q.

What was the subject of that correspondence?

10

A.

Passing on your request for documents and

11

I had correspondence with Brandt & Hochman,
E-mail correspondence.

asking what they had.

12

Q.

Anything else?

13

A.

That's all I recall.

14

Q.

Do you use the Google search engine?

15

A.

Beg your pardon?

16

Q.

Do you use the Google search engine at

17

Google.com?

18

A.

Yes , I use that.

19

Q.

What do you use it for?

20

A.

Oh

21

i

mainly to look up references to people I'm

maybe writing about or dates on something.

22

Q.

Do you find it useful?

23

A.

Yeah

24

Q.

When you type in a search in the Google search

25

engine

l

l

very useful.

a set of search results come up ;

is that right?

Gore Brothers Reporting & Videoconferencing
4108373027 - Nationwide - www.gorebrothers.com

A-1445
Case 1:05-cv-08136-DC Document 1075-14

Filed 08/26/13 Page 1 of 3

EXHIBIT 14

A-1446
Case 1:05-cv-08136-DC Document 1075-14

AG: The Authors Guild: News: Google Launches Book-Browse ...

Filed 08/26/13 Page 2 of 3

http://www.authorsguild.org/news/google_launches_browse. him

EXHIBIT

The Authors Guild
Google Makes Thousands of Books
Available in Full Text
Text of October 7, 2004, e-mail to members:

Like Amazon's program, but there's some money in it; publishers stilt lack authority to participate.
Yesterday, the search engine company Google announced the launch of the "beta" (test) phase of
a new program it calls Google Print, which makes the texts of participating publishers' titles
available for browsing. Links to book excerpts in the form of low-resolution images of printed
pages show up as results in standard Google searches. The program is quite similar to one
l<lunched by Amazon 12 months ago, but Google, unlike Amazon, will share search statistics with
publishers and provide links to multiple book retailers from each excerpt. Google also is offering
to place ads below book page images and share the revenue from those ads with publishers. (We
expect those revenues to be quite modest.) The Guild believes, as it does with Amazon's "Search
Inside the Book" program, that most publishers don't have the necessary rights to license this use
of their titles to Google without their authors' permission.

SIMILARITIES TO AMAZON'S SEARCH INSIDE THE BOOK
As with Amazon's program, users can view a limited number of pages (20% of the text will soon
be the default setting, but publishers may opt for higher limits), but no more than five
consecutive pages. Google Print has also mimicked Amazon in disabling the browser's print, copy,
save, and pdste functions, in an attempt to limit piracy. (Savvy computer users can work around
some of these limitations, but the efforts are probably too cumbersome to be worthwhile for most
users.)
Our review of publishers' contracts shows, as it did last year, that most publishers do not have the
right to participate in Google Print without their authors' permisSion. Although many publishers
argued with our interpretation of their contracts last year, they removed works from Amazon's
program at their authors' request. We believe that publishers will generally remove a work from
Google's program on request.
We think Google Print will likely prove to be useful in promoting certain titles. Midlist and backlist
books that are receiving little attention, for example, may benefit from additional exposure in
searches. For other titles, the program could erode sales. Reference, travel books and cookbooks
might be at greater risk, and we urge authors of these titles in particular to press for access to
Google Print usage statistics. Fiction titles arc not likely to be threatened.
IMPORTANT DIFFERENCES

Unlike Amazon, Google promises to provide publishers "detailed book-level reporting on the page
impressions [that is, viewings], ad clicks, Buy this Book clicks, and ad revenue generated." It will
update this information throughout the day, allowing publishers to track the performance of all
titles in the program. This transparency in reporting should illuminate the effect on sales of
Google's program, and, if shared with authors, help them decide whether their books should be
part of the program. It would be a relatively Simple matter to allow authors to view this
information through a secure web page. We'll be urging Google and publishers to do 50.
Google is giving publishers the option of allowing "relevant" advertising links to appear on the
page with text from a work and will share the revenue from those ads with the publisher. Book

lof2

CONFIDENTIAL
INFORMATION

AG0193

8/3012006 12:46 PM

A-1447
Case 1:05-cv-08136-DC Document 1075-14

AG : The Authors Guild: News: Google Launches Book-Browse ...

Filed 08/26/13 Page 3 of 3

http://www.authorsguild.org!newslgoogleJaunches_ browse. hIm

publishing contracts provide that the author is entitled to a share - typically 50% or more - of all
income earned from licensing the title to third parties. Clearly, this kind of advertising revenue
falls into that category. (Some book contracts prohibit advertising in authors' books.)
Google Print will reach a far broader audience than Amazon's program, but that audience won't
necessarily be book buyers. Google is the most popular Internet search engine in the U.S. and,
according to one survey, has about seven times the average daily pilge views as Amazon.
SAMPLE PAGES

Our research suggests that there is a quite limited number of titles available in Google Print at the
moment - at least compared to Amazon's program - but Google appears to be aggressively
moving to add titles. Here are some sample book pages from Google Print; the first is from
Penguin Classics. Each of these include the optional (to the publisher) ads at the bottom of the
page. Note how the ads attempt to coordinate with the text:
Thomas Paine:
http://print.gooqle.com!print?id=GDRt70vGw9YC&prev=http:!/print.google.com/print%3Fq%3Dth l

Charlie Parker:
http://print.google.com/print?id=3anaSNjkS-4C&prev=http:!lprint.google.com/print_o,Io3Fq%3Dchal

New Deal:
http://print.goog le.com/print?id =S8RAzsZK8YMC&prev= http://print.google.com/print%3Fg%3Dne
Mickey Mantle:
http://print.google.com!print?id=RVJo6nkx8UoC&prev=http:/Iprint.gooqle.com/print%3Fg%3Dmic

We'll be sending you more information about the program shortly, and we're going to be in touch
with the major publishers about their participation in Google Print and their obligation to share ad
revenue with authors. If you'd like a book removed from the program and your publisher isn't
cooperating, please let us know.
Copyright 2004, The Authors Guild, Inc. The Authors Guild is the nation's largest and oldest
society of published authors and the leading writers' advocate for fair compensation, effective
copyright protection, and free expression. For further information, visit www.authorsguild.org.
This may be forwarded and posted at other sites in its entirety, including this notice.
The Authors Guild is the nation's largest and oldest society of published authors and the leading
writers' advocate for fair compensation, effective copyright protection, and free expression.

© 1997-2006 The Authors Guild, Inc. - staff@authorsguild,org
31 E. 32nd Street, 7th Floor - New York, NY 10016 - Phone: [phone] - Fax: [phone]

20f2

CONFIDENTIAL
INFORMATION

8/30/2006 12:46 PM
AG0194

A-1448
Case 1:05-cv-08136-DC Document 1075-15

Filed 08/26/13 Page 1 of 61

EXHIBIT 15

A-1449
Case 1:05-cv-08136-DC Document 1075-15

Filed 08/26/13 Page 2 of 61

Page 1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

1
2
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THE AUTHORS GUILD, INC., ET AL.,
4
Plaintiffs,
5
vs.
No. 05 CV 8136 (DC)
6
GOOGLE, INC.,
7
Defendants.
8
______________________________________________________ 9
10
11
12
13
VIDEOTAPED DEPOSITION OF DANIEL GERVAIS
14
San Francisco, California,
15
Tuesday, June 12, 2012
16
Volume I
17
18
Reported by:
19
STACEY M. DIODATI
20
CSR No. 11925
21
Job No. #147938
22
23
24
PAGES 1 - 239
25

Page 3

APPEARANCES:
For Plaintiff:
BONI & ZACK, LLC
BY: JOSHUA D. SNYDER, ESQ.
15 St. Asaphs Road
Bala Cynwyd, PA 19004
610.822.0200
[e-mail]
For Defendant:
DURIE TANGRI
BY: DAVID McGOWAN, ESQ.
217 Leidesdorff Street
San Francisco, CA 94111
415.362.6666
[e-mail]
Also Present:
Peter Hibdon, Videographer

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

1
2
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THE AUTHORS GUILD, INC., ET AL.,
4
Plaintiffs,
5
vs.
No. 05 CV 8136 (DC)
6
GOOGLE, INC.,
7
Defendants.
8
_______________________________________________________ 9
10
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13
Videotaped Deposition of DANIEL GERVAIS, taken
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on behalf of Defendants, at Durie Tangri, 217
15
Leidesdorff Street, San Francisco, California, beginning
16
at 9:59 a.m. and ending at 4:33 p.m. on Tuesday, June
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12, 2012, before Stacey M. Diodati, Certified Shorthand
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Reporter No. 11925.
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Page 4

INDEX OF EXHIBITS
Exhibits

Description

Page

Exhibit 1

Photocopy of Webpage
SSRN.com

Exhibit 2

Report of Professor
Daniel Gervais

Exhibit 3

The Protection of
Databases by Daniel J.
Gervais

Exhibit 4

Article Titled "Internet
anti-piracy legislation
is flawed, says
Vanderbilt professor"

Exhibit 5

The Internationalization
of Intellectual
Property: New Challenges
from the Very Old and
the Very New

18

23

39

48

54

1 (Pages 1 to 4)

A-1450
Case 1:05-cv-08136-DC Document 1075-15

Filed 08/26/13 Page 3 of 61

Page 5

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Page 7

I N D E X O F E X H I B I T S (cont.)

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Exhibits
Description
Page
4
Exhibit 6
Advisory Committee on
64
5
Management of Copyright
6
and Related Rights in
7
Global Information
8
Networks, First Session,
9
Geneva, December 14 &
10
15, 1998
11
12
Exhibit 7
Written Comments f
97
13
Copyright Clearance
14
Center, Inc., dated
15
2/5/99
16
17
Exhibit 8
Keynote: The Landscape
124
18
of Collective Management
19
Schemes
20
Exhibit 9
The Tangled Web of UGC:
144 21
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Making Copyright Sense
23
of User-Generated
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Content
25

INDEX OF EXAMINATION
Page
By Mr. McGowan .................................8

Page 6

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I N D E X O F E X H I B I T S (cont.)
Exhibits
Exhibit 10

Description
Email from Daniel
Gervais to Frederic
Haber, dated 3/25/12

Page

Exhibit 11

Document Titled
"Insights"

Exhibit 12

Condensed Deposition
Transcript of Betty
Miles, dated 1/4/12

177

180

188

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San Francisco, California
Tuesday, June 12, 2012; 9:59 a.m.
VIDEOGRAPHER: Good morning. We are on the
record at 9:59 a.m., on June 12, 2012. This is the
video recorded deposition of Daniel Gervais. My name is
Peter Hibdon, here with our court reporter, Stacey
Diodati. We are here from Veritext National Deposition
& Litigation Services.
The caption of this case is the Authors Guild
versus Google, Inc.
At this time, will Counsel and all present
please identify themselves for the record.
MR. McGOWAN: David McGowan, Durie Tangri for
Google.
MR. SNYDER: Joshua Snyder, Boni & Zack, for
class representatives in the class and the witness, the
expert witness.
DANIEL GERVAIS,
being administered the oath by the Certified Shorthand
Reporter to tell the truth, the whole truth, and nothing
but the truth, testified as follows:
EXAMINATION BY MR. McGOWAN:
BY MR. McGOWAN:
Q Good morning, Professor Gervais.

2 (Pages 5 to 8)

A-1451
Case 1:05-cv-08136-DC Document 1075-15
Page 9

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A Good morning.
Q Thank you for coming here.
A Happy to be here.
Q If called as a witness at trial, do you
propose to offer expert testimony in this case?
A I suppose so.
Q In what fields of expertise?
A My field of expertise in my report is
collective management of copyright.
Q Any other fields?
A I consider myself an expert in international
intellectual property as well.
Q What do you mean by "international
intellectual property"?
A The application of international treaties and
norms concerning intellectual property rights such as
copyrights, trademarks, patents, geographical
indications -THE REPORTER: What's that one?
"Geographical"?
THE WITNESS: Indications.
-- industrial designs, and so on.
BY MR. McGOWAN:
Q Is that intellectual property law?
A Law and policy.

Page 11
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Page 10

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Q What opinions do you propose to offer?
A In the report I state in Paragraph 10 what I
am opining for the purposes of this case, which is
whether there is a role for collective management and
whether a fair use determination with Google is doing
might affect that likelihood.
Q A role for collective management in what?
A In licensing rights to use books or parts of
books online, including the types of uses that Google is
doing in the -- that is described in the case, in the
materials that I reviewed to prepare my report.
Q What do you understand those types of uses to
be?
A Well, my understanding is that Google has
scanned the entire text of millions of books and is
making those books available in a number of a ways; in
some cases, only bibliographic data, but many cases it
makes available snippets, which I believe were defined
in the materials I reviewed as being very often 1/8th of
a page.
And then there's a certain number of snippets
per book. I don't recall the exact way in which Google
does that.
Q In preparing your report, did you speak to
anyone?

Filed 08/26/13 Page 4 of 61

A Counsel.
Q Anyone else?
A I ran one paragraph, which I believe -- I
don't have the report in front of me, but Paragraph 18,
which deals with deals Copyright Clearance Center. And
I sent a draft of that paragraph to a lawyer there to
review for accuracy.
Q What was the name of the lawyer?
A Frederick Haber, H-a-b-e-r.
Q When did you send him a paragraph of your
report?
A As I was preparing it, which would have been
late February, early March, I'm thinking.
Q Did you receive any comments from Mr. Haber?
A Yes. He pointed a few things that he thought
could be said differently. And I considered those
suggested changes and incorporated some of of them in
the report.
Q Was -- when you say "he pointed," how did he
point? Was this in an email?
A I think we had an email exchange and a
conference -- or not a conference, but had a telephone
call.
Q Did you rely on his connections in drafting
Paragraph 18?
Page 12

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A Rely on -- he pointed me to a page on their
website which described one of their programs more fully
than I had in my draft. And I incorporated additional
details from the website into Paragraph 18. So to that
extent, I guess, yes.
Q Did you list your conversation with him as one
of the materials you considered?
THE REPORTER: "As one of the materials . . ."
MR. McGOWAN: You considered.
THE WITNESS: I'm not sure. I don't have the
exhibit in front of me. To be honest, I don't recall if
I listed it or not.
Q Did you speak to anyone else at CCC?
A No.
Q Do you know Tracy Andrews?
A No. If you mean Armstrong -Q Armstong. My apologies.
A Yes, I do know Tracy Armstrong.
Q You did not speak to her about -A Not about my report, no.
Q Have you ever spoken to her about Google?
A Yes.
Q When was the first time you spoke to
Ms. Armstrong about Google?
A I believe when she was on the panel in

3 (Pages 9 to 12)

A-1452
Case 1:05-cv-08136-DC Document 1075-15
Page 13

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New York. That would have been well before I was
retained in the case. And this was during the
settlement negotiations. And I think she and Mr. Haber
might have been there too, were talking about the case
on the panel which, I -- as I recall, was at Columbia.
And I wasn't on the panel, but I spoke to them
on that occasion. And I think the conversation went
something like, "It's interesting, this proposed
settlement, this is something that CCC could do."
And my recollection was that they seemed to
agree with that suggestion. But that was the extent of
that discussion.
Q Other than the conversations with Mr. Haber
you just mentioned, did you speak to anyone else in
connection with preparing your report?
A No.
Q Did you review any contracts in connection
with preparing your report?
A Contracts, no.
Q Did you review the deposition of Paul Aikan?
A I think I saw -- I scanned part of that, yes.
But I can't remember if it was after or before my
report.
Q Let me -- let me divide. From the time you
submitted your report, have you continued to review

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materials pertaining to the case?
A Yes.
Q Have any of those materials caused you to
alter any of the opinions that you express in your
report?
A No.
Q What materials do you recall having reviewed?
A I recall reviewing the expert report by Harris
Greco Chevalier. And I scanned, in the last few days,
the rough transcripts of parts of their depositions. I
also read part of the judge's opinion on class
certification.
I think that's it.
Q And you think you may also have read the
deposition of Paul Aikan?
A I remembering reading part of it, scanning
part of it. But I remember it was a very long document,
and I didn't have time to go through all of it. And I
don't remember if it was after or before my report, but
most likely would have been after my report was filed.
Q Eric Zohn, Z-o-h-n?
A No, that does not ring a bell.
Q The plaintiffs, Betty Miles?
A No.
Q Jim Boutin? Boutin?

Filed 08/26/13 Page 5 of 61

A No, that doesn't ring a bell.
Q Have you been deposed before?
A Have I been deposed before? Certainly not
recently. I'm trying to think, if I go back in time.
I've written expert reports before, but I have not
deposed, no.
Q How many expert reports have you written?
A I have written at least two others in U.S.
cases. And then I've written expert reports for
international cases as well.
Q Let's start with the U.S. cases. What's the
the name of the first case in which you can recall
writing an expert report?
A I remember writing a report in the case
involving a publisher called Elsevier in the Southern
District of New York. That would have been
approximately two years ago. I understand the case was
dismissed on summary judgment, and I wasn't deposed in
the case.
Q What's the next case subsequent in time to the
Elsevier case that you recall?
A Actually, I misspoke. I didn't file an expert
report. I was thinking of my Amicus Brief at the 10th
Circuit and then in the Supreme Court, and then in the
Golan v. Holder case. So it was not an expert report.
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Q Golan and Holder is a brief?
A It was a brief on my own behalf, yes, filed
both in the 10th Circuit and the Supreme Court.
Q In addition to the Elsevier report that you
mentioned, have you submitted other expert reports in
other U.S. cases?
A Not yet. I am retained as an expert in the
settlement in a state case in California involving the
so-called audio visual guild on the Screen Actors Guild,
Directors Guild of America, and the Writers Guild of
America West.
Q Who retained you?
A The plaintiffs' counsel. The settlement, as I
understand it, specifically directs that two experts
should be appointed to overview the distribution of
foreign levies that are received by the guilds, and I am
one of two experts.
Q Who is the other?
A His name is Donald Jasko, J-a-s-k-o.
Q Have you submitted expert reports in any other
U.S. cases?
A No.
Q International cases in which you have
submitted expert reports, what is the first in time that
you can recall?

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A I am advising counsel on that case involving
the packaging of tobacco. That is a case that is
pending before -- actually several cases pending before
different international jurisdictions.
Q Who are the counsel?
A They are in London. A firm called Fresh
Fields.
Q Who is their client?
A To what extent am I -- I'm not sure to what
extent I can disclose that.
THE REPORTER: I'm sorry. I can't hear you.
What was that?
THE WITNESS: I'm not sure to what extent I
can disclose that. It's really not a copyright
management related case.
BY MR. McGOWAN:
Q I understand. And if you wish to consult with
your counsel, I understand that as well. Let's take one
step at a time.
Did you sign a confidentiality undertaking
with respect to that case?
A I believe I did.
Q And that's a current case?
A Yes.
Q Any other international cases in which you

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have prepared a report?
A Prepared the report, no.
Q Any other international cases in which you
have given testimony by deposition?
A No.
MR. McGOWAN: Let me have marked as Exhibit
Gervais 1 -(Exhibit 1 was marked for identification.)
MR. McGOWAN: -- a copy of a web page.
BY MR. McGOWAN:
Q I will ask you, Professor Gervais, do you
recognize this web page?
A Yes. This looks like a list of the papers
that I made available on the site called SSRN.com.
Q SSRN stands for the Social Science Research
Network?
A Correct.
Q The papers that are listed here, can these be
downloaded from this site?
A I believe so.
Q All of them?
A I believe so. In some cases, you can only put
in abstract, and in some cases you can put full text
depending on -- some of my papers are not there because
I'm not allowed to put them there.

Filed 08/26/13 Page 6 of 61

Q To the extent that you are allowed to put them
there, have you done so?
A I think that's an incomplete list, but let's
say I've put -- most recent papers are there, yes.
Q And if I were to, for example, want to
download traditional knowledge and intellectual
property, the first paper listed, can I get the entire
paper?
A Yes.
Q At the top left-hand corner underneath your
name there's an entry that says, "SSRN, Author, Rank."
Do you see that.
A Yes.
Q What does that refer to?
A I don't know.
Q On the -- above the listing, there's a box
that says aggregate statistics. Do you see that?
THE REPORTER: "Aggregate"?
MR. McGOWAN: Aggregate statistics.
THE WITNESS: Where, exactly? I don't see it.
BY MR. McGOWAN:
Q In the rectangular box titled, "Daniel J.
Gervais Scholarly Papers," on the right-hand side?
A Oh, yes. Yes, I do.
Q Total downloads, 7619?
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A Correct.
Q Total citations 19?
A Yes.
Q Do you know what those refer to?
A I can only assume that the first number refers
to the number of times my papers were downloaded, not
knowing which one, unless I look at the rest of the
list. And citations, I don't have a clue what that
number means because, frankly, even in context I don't
understand the number.
Q Why don't you put your articles, or at least
your more recent ones, up on SSRN?
A It's a practice of Vanderbilt Law School that
is strongly encouraged. Actually, our administrative
assistants are encouraged to help us do so.
Q Why did you do it personally?
A I did not give it much thought. As I said,
it's a practice that is encouraged, and I have no
objection to having people download my papers. I'm
actually happy if they do so.
Q Why are you happy?
A Because it's part of legal scholarship, I
suppose, as of any scholarship that you would want
people to access your material and review and critique
it and use it and build on it.

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Q Do you benefit when people are able to access
your papers and read your ideas?
MR. SNYDER: Objection to form.
THE WITNESS: Do I benefit? I'm not sure what
you mean. Financially, or otherwise?
BY MR. McGOWAN:
Q In terms of your scholarly goals.
MR. SNYDER: Objection.
THE WITNESS: I really don't know. I'm just
really having trouble with "benefit." The fact that
people refer to my scholarship, is that a benefit? Very
hard to answer that question.
I know financially SSRN offers the option of
sending paper -- bound paper copies for a fee. But I
have not looked into that program. I know some of my
colleagues have, and I haven't.
Q Have you done that with any of these papers
listed on Exhibit 1?
A No. I have not -- I've not given it much
thought, to be honest, whether I should join that system
or not. I just put my papers up there when I am allowed
to do so by my publishing agreement.
Q Is one of your aspirations in writing
scholarship to expose others to your ideas?
A Well, I think it's the aspiration of a writer

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to be read, so yes, to that extent.
Q Does posting papers and allowing readers to
download them help you achieve that aspiration?
MR. SNYDER: Objection to form.
THE WITNESS: Empirically, I cannot verify
that. But it looks, intuitively, like that could be the
case.
Q Do you ever receive offprints of your
articles?
A Yes, regularly.
Q Do you circulate offprints to your colleagues?
A Yes.
Q And by offprint, so the record is clear, that
would be a soft bound version of the specific article
you wrote; correct?
A Correct.
Q Do you charge the people you send your
offprints to for them?
A No, I have not charged to send offprints to.
The law school pays the offprints when they come in, and
then I send them out, through my assistant, to
colleagues I think might be interested.
Q Are you familiar with a practice in legal
academe of measuring scholarly influence by citation
count?

Filed 08/26/13 Page 7 of 61

A I'm aware that some people do that. And one
of my colleagues actually knows a system he told me to
look into. But Geiger -- Eiger, something. But to be
very honest, I haven't paid any attention to that.
Q Do you know if the rankings are based on the
number of times that a person's work is cited so that a
greater number implies greater influence?
A I don't know how the system works.
Q We'll go through some of these in particular.
But as you sit here now, looking at your list of recent
papers, has your work in this case led you to modify any
of the opinions you expressed in any of them?
MR. SNYDER: Objection.
THE WITNESS: In any of the papers I have ever
written? I can't think of any opinion that would have
changed, but obviously I would have to reread every
single paper, going back to the first one.
THE REPORTER: Going back to what?
THE WITNESS: To the first one.
MR. McGOWAN: Let me have marked as Exhibit 2
your report.
(Exhibit 2 was marked for identification.)
BY MR. McGOWAN:
Q Let me ask you to turn to the last page, which
is Exhibit B.

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A (Witness complies.)
Um-hum.
Q This is -- what is Exhibit B?
A It's a list of materials I considered prior to
writing the report.
Q I do not see your email to the lawyer at the
CCC on here. Did you omit that?
MR. SNYDER: Objection to form.
THE WITNESS: To the extent that that would
qualify as material considered for -- you know, I didn't
put discussions with counsel either. To that extent it
is not there, yes.
BY MR. McGOWAN:
Q Why not?
A I don't -- I don't recall thinking of it as
material considered. I really was thinking of material
that I directly used. I just sent that paragraph for
verification, and so I just didn't -- didn't indicate it
here.
Q Do you have a copy of the email he sent you?
A Not with me.
MR. SNYDER: Objection.
BY MR. McGOWAN:
Q Do you have a copy of the email he sent you
anywhere?

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A Oh, it's likely somewhere in my -- in my email
system, yes.
MR. McGOWAN: We can discuss it at break.
We'll ask for production of that. It should have been
listed.
MR. SNYDER: We can discuss it at the break.
THE WITNESS: I defer to counsel on that one.
BY MR. McGOWAN:
Q Let's go to Exhibit A, please.
A The C.V.?
Q Yes?
A Okay.
Q Under "Education" you list a doctorate from
the University of Nates.
A Correct.
Q What is the doctorate in?
A Intellectual property. Copyright,
specifically.
Q Copyright law?
A It was -- the dissertation part of the
doctorate was on the notion of work on the Berne
Convention, copyrighted work. The Berne Convention
being an important international copyright treaty.
Berne is B-e-r-n-e.
Q Is it a doctorate of law?

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A Yes. Well, it's called Ph.D. in law in
political science, I think, technically. I'd have to
look at the degree. It goes back awhile.
Q Are you an economist at all?
A No.
Q Your previous employment -- I want to make
sure we've got that. The answer is?
THE REPORTER: No.
BY MR. McGOWAN:
Q Okay. Previous employment, let's go down to
lawyer Clark Woods in Montreal?
A Um-hum.
Q Are you admitted to practice in any
United States jurisdiction?
A No.
Q Have you ever sought admission in any United
States jurisdiction?
A No. I'd rather not -- not be admitted. To be
honest, I'm very happy not -- to be able to tell people,
naturally when they call several times a week to get IP
advice, that I'm not a lawyer in Tennessee.
Q Do you seek -- did you seek admission to the
Bar when you submitted your Amicus Brief?
A No, I submitted the brief through a lawyer
in -- I think he's based in Denver.

Filed 08/26/13 Page 8 of 61

Q In your C.V., the third entry from the bottom,
it says, "Head of Section" -A On which page, please.
Q Under -- on the first page.
A You're on previous employment?
Q Yes. Previous employment.
A Um-hum.
Q Third entry from the bottom. "Head of
Section, World Intellectual Property Organization."
A Um-hum.
Q What were your responsibilities in that
position?
A The section was called Copyright Project
Section, which ask not very descriptive. The main
responsibility was to overview the conferences, meetings
having to do with the future of copyright. So
basically, organizing international events, including
one at Harvard Law School, where we invited people to
come and talk about where they thought copyright policy,
copyright law might go in the future.
These were typically very international in
nature, bringing people from both developed and
developing countries and the proceedings of these
meetings were systematically published by WIPO, which is
the World Intellectual Property Organization.

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In addition to that, I attended meetings
dealing with copyright at WIPO, and occasionally would
prepare the report of the meeting. It could be a
committee of experts; it could be a diplomatic
conference; it could be an informal discussion.
And again, those reports were made available
publicly by the organization.
Q Did you negotiate any licenses while you were
at WIPO on behalf of third parties?
A I can't -- I don't recall negotiating a
license with anyone.
Q Were you involved in the publishing of books
while you were at WIPO?
A No.
Q So there are three things I have. You held
conferences, and assisted in preparation of publication
papers relating to those conferences; correct?
A I assisted in making sure we had the papers,
that they were proper in terms of both substance and
form. But the publication of the book itself was
handled by the publications division. I think there are
1200 employees. It's a big shop, and they have a
specialized publications division.
Q And you attended meetings and would sometimes
write reports concerning those meeting?

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A Well, I would prepare the report in advance of
the meeting so people would have, obviously, discussion
papers to consider, and then we would prepare a report.
And occasionally, I would write the whole report;
occasionally, parts of the report, depending on how long
the meeting was and how quickly we needed the minutes
adopted.
It might be useful to add that reports that
are adopted at WIPO meetings will typically suspend at
the end of two or three days, the conferencing will
suspend for a day, so we have to draft overnight so that
the report can actually be voted on the next day.
Q Following your work at WIPO, you moved to
SESAC in Paris?
A Correct.
Q What were your responsibilities at SESAC?
A I was an assistant secretary general. So this
was a very broad mandate, basically, management of the
office, their policy and legal papers. There was a
director of legal affairs that was -- it's a fairly
small organization of about 10 or 12 employees at the
time at the headquarters. And then there were offices
in Singapore and Buenos Aires as well.
But for the Paris office, I was doing both
substance on collective management and administrative of

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the office. I also helped set up collectives in a few
countries, both at WIPO. I actually did one of those I
forgot to mention, and then at SESAC, I did a number of
those where I would go to a country, very often from
scratch, we would train people, install software, get
them going. And then I would go back, typically, a year
or two later to see how they're doing and help them in
the process.
Q Let's go back to WIPO then. In which
countries did you assist?
A For WIPO it was Burkina Faso.
THE REPORTER: I'm sorry.
THE WITNESS: Burkina Faso, formerly known as
Upper Volta. B-u-r-k-i-n-a, second word, F-a-s-o; it is
somewhere between Ivory Coast and Senegal.
BY MR. McGOWAN:
Q And when you say set up collectives, can you
tell me what was being collectivized?
THE REPORTER: I can't hear you.
MR. McGOWAN: What was being collectivized.
THE WITNESS: These were typically what we
would call either performing rights organizations or
music rights organizations by which, I mean, both
performing rights and mechanical rights.
BY MR. McGOWAN:

Filed 08/26/13 Page 9 of 61

Q And what did you do to set up the collective?
A Basically everything. In the case of Burkina
Faso, I flew in with the computers. And the software,
we had trained people in Geneva. We basically then
installed the machines, made sure they were -- the data
base was working, and then trained additional people
locally. And I stayed until basically the operations
were up and running.
Q Where did you obtain the data for the
databases?
A This was provided by -- there was an agreement
at the time between by WIPO and SESAC to have access to
a database that was not totally complete at the time, so
that part of the processing, the data processing, was
done locally. And part of the data processing, in the
case of specifically Burkina Faso, because it's a French
speaking country, was done in Paris by the French Music
Rights Organization as a service to help this new
collective.
Q What data were collected in the database?
A It would be what we call meta data. So
basically titles of songs, names of performers, names of
songwriters, names of music publishers, record
companies, and I think the part of the database that was
still in Paris was addresses to send payments to and the

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splits.
Q The splits between the collective and -A No, between the publisher and the songwriter,
typically.
Q Was your work at SESAC in setting up
collectives similar in nature to your work -A Very much so.
Q I'll just mention, we need to be careful to
take turns speaking so that the court reporter can get
each of our statements.
A Good point.
Q You joined Copyright Clearance Center in 1997?
A That sounds right.
Q When you began work there, what was your
title?
A Briefly, director of international -- I'm not
sure of the exact title, but something director of
internationals affairs or operations and very -- fairly
quickly, though I don't remember the exact date, became
vice president, international.
Q And what did you do as vice president
international?
A Basically, my job was to negotiate reciprocal
representation agreements between CCC, which is the U.S.
Reprographic Rights Organization, which we usually

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abbreviate to RRO, and foreign RROs in Europe, Asia,
Latin America. So that was a very significant part of
the job.
Then obviously, once these agreements are
signed, they need to be administered. So you basically
then deal with issues that come up occasionally between
RROs, anything from technical information on data to
payments to basically anything else that can happen
between two collectives.
Q Anything else?
A I participated as a senior executive at senior
management team meetings. I advised the CEO on whenever
he asked for advice.
Q Who was the CEO while you were -A Joseph Alen, A-l-e-n.
Q The agreements that you negotiated, were they
all between or among collective rights organizations?
A They were not all between RROs. Almost all of
them were -- we negotiated some tripartite agreements
concerning some revenue that is from, I believe, Norway
where the bylaws of the Norwegian RRO required that the
payment be sent to not the RRO itself, but to
organizations representing right holders, namely authors
and publishers, separately.
And so that was a more complicated

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negotiation. But all of the others, as I recall, were
fairly typical contracts between two collectives.
Q Where were the authors and publishers located
who received these proceeds that you mentioned?
A I believe they were all in the United States.
Q And these were payments from Norwegian?
A Well, Norwegian is the one contract that was
more complicated because of their disbursement policies.
Everything else was very typical. In other words, you
get payment from a foreign RRO with data. Then you
process the data and pay the U.S. rights holders
accordingly.
Q During your time at CCC did you negotiate any
agreements with a U.S. publisher?
A Yes.
Q How many?
A Several. I don't recall. So at some point
during my tenure as vice president international, the
vice president of rights holders relations, which is
authors and publisher relations, left the company. And
I took over on an interim basis, which must have lasted
six months or so.
And during that time, I did negotiate
agreements with publishers. Now, I typically would not
negotiate the exact legal terms of the contract. That's

Filed 08/26/13 Page 10 of 61

something the general counsel would usually take over
from me. But I would negotiate on a more business
level, I suppose.
Q Business as opposed to the terms? I'm not
sure I follow that.
A No, basically explaining to -- these were
agreements by which, for example, a publisher or an
author would want to join CCC, so very often, they have
a long list of questions. Many of them are very
concrete questions about how often do I get paid, what
data do I receive with my payment, how do you base your
payments to authors and publishers. So you would
explain all of that. And then when it came time to
actually negotiating the exact terms of the contract
with CCC, that would be taken over by the legal
department.
Q So you did not negotiate the terms; you
provided information?
A I did not negotiate terms of the actual
contract, yes, that's right.
Q Did you negotiate the terms of an actual
contract with authors?
A The role would be the same. So I would talk
to the author, explain the services, and then very often
I would attend these negotiations but I would not
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typically be very active. I would let the general
counsel take over.
Q Did you have any other responsibilities at the
CCC during your tenure there?
A That's a hard question. As I said, as member
of a senior executive team, all kinds of things can
happen. And sometimes you just, you know, due to an
emergency, something that shows up -- comes up, and then
you basically help the team. I can't recall anything
specific. But anything from fire evacuation to -- you
know, so it's very hard to answer your question
categorically.
Q Any other responsibilities pertaining to the
negotiation of agreements with either publishers or
authors?
A Not beyond what I have already indicated.
Q Did you have responsibilities for dealing with
users of CCC?
A As a rule, no. Did it happen on occasion,
probably. But that was a separate part of the company
that would negotiate user agreements. So I don't recall
any specific instance where I would have certainly not
negotiated the terms of the contract with the user.
Attended the negotiation or discussion, yes.
Q Do you recall any particular user whose

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negotiations you attended?
A No, I don't recall any specific names.
Q Do you recall, for example, whether they were
business users or academic users?
A I think both. I certainly attended with
business users. I think I attended a discussion with, I
think it might have been, Penn State, but I'm not
100 percent sure. I think was Penn State, though, at
the time.
I remember visiting the campus, so there must
have been discussions involved there. But I don't
recall the specifics of -- this was probably when the
electronic course back service was being launched.
Q Did you have any role in the development of
the terms for the electronic course back service?
A Depends on the how you define terms. I did
not negotiate for the contract, but I did provide input
on how the service should function.
Q What input do you recall providing?
A These were half-day or sometimes even longer
meetings with the entire team, on into, you know, how
user friendly the interface should be to what to do if
the title doesn't show up when the user searches it
online, to, in other words, customer service to those
kinds of issues.

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So I really honestly don't remember specific
advice. I just remember being part of that, those
meetings, and contributing what I could.
Q During the time that you were at CCC, was
there any offering by CCC targeted at general consumers
as opposed to business or academic users?
A Yes. They started a program. The name has
since changed. I don't remember what it was called at
the time. But basically, this was a service that
allowed any user, including individual users -- you have
to recall these were the days where people were setting
up -- starting to set up so-called personal websites and
wanting to put content on them.
And there was a service at CCC that we had
launched to allow people take contact from, for example,
newspapers and so on to put on a personal website.
There were rates specific to that use.
And then the service was exported so that -what I mean by that is the -- there was an icon at the
bottom of the -- of an article, say, in the New York
Times page. You could click on that and then the window
would open to process a transaction, a licensing
transaction. Even though you never left the New York
Times site, the actual processing of the data was done
at CCC.

Filed 08/26/13 Page 11 of 61

Q Did that service have a title?
A Yes. But I don't remember -- it was Write,
something. To be honest, I don't remember.
Q Did it have standard terms associated with it?
A I assume so. I did not review those terms.
Q Come back to the report in a bit. Set that
aside for a moment.
A Set the report aside?
MR. McGOWAN: Yes. I'm going to mark as
Exhibit 3 an article entitled, "The Protection of
Databases."
(Exhibit 3 was marked for identification.)
BY MR. McGOWAN:
Q Did you write this article?
A Yes.
Q The -- I want to direct your attention to
Page 1157.
A Yes.
Q In Section 3, the first sentence says, "My
quote, The Internet was built with information.
Information on the Internet has value not because it is
scarce. The model in which applied in traditional
microeconomics to goods, including informational goods
such as books, but because those who value it most are
able to find it."
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Do you see that that?
A Yes.
Q What did you mean by that?
A Well, it's something that was repeated at the
conference yesterday and which I mentioned in several
other publications almost in the same terms. So this is
something I obviously believe. It's that the best way
to generate value for creators on the Internet for their
content to be found, the challenge being for them to get
paid.
For example, I have written extensively that
the solution to music file sharing is not to sue
teenagers or take content down, but to license it, as I
actually believe Google does with its AdSense program on
YouTube.
But I think that's the right way to go. It's
to make contect available, simply to find ways to have
financial flows that adequately reward the people who
created the content.
Q So if I understand you correctly, you've
described a two-step process. Step 1 is search, in
which the consumer finds an object of content on the
Internet?
A I did not discover a two-step process. I
discovered a process with two objectives. One is making

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Filed 08/26/13 Page 12 of 61

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the content available, and second objective being to
make that happen in a way that rewards creators.
Q Okay. Do you have to search -- strike that.
Do you have to find the content before you
have any dealings with it on the Internet?
MR. SNYDER: Objection to form.
THE WITNESS: The true answer to that is,
frankly, it depends. So if you're -- if you're talking
about certain types of content, where searching it means
you've -- you've acquired enough of the content that you
don't need more, then both operations happen at the same
time. For other types of content, you would need to
search it and then make a decision.
So it really depends on which exact element of
content one is looking at.
BY MR. McGOWAN:
Q When you say it depends, is it your testimony
that there are elements of content on the Internet that
do not need to be found before they can it be consumed?
A Again, it depends on what "found" means.
Let's say you want the latest book by a certain author,
the latest song by a certain artist, and you have the
title. Have you not already found it? It is really
unnecessary at that point to download the song to say, I
found it, or to download the book?

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I think the answer is probably no.
Q How do you get the title in the first place?
A It could be on -- it could be anywhere from
Facebook to a conversation at the local coffee shop to
you've heard it on the radio, to you've read the review
in the New York Times book section. Who knows.
Q To searching on the Internet?
A Possibly.
Q Have you undertaken any study to find out how
common it is to find, say, books on the Internet through
coffee shop conversations?
A No.
MR. SNYDER: Objection; form.
BY MR. McGOWAN:
Q Have you taken any study to find out how
common it is to find books on the Internet through any
means?
A I have not seen those studies. I have not
performed them myself, no.
Q Are you an expert in search?
A No, I don't consider myself an expert in
search.
Q When you say that -- in this sentence on
Page 1157, that information has value not because it is
scarce, but because who value it most are able to find

A Um-hum.
Q When you say, "able to find it," why do you
say "able"?
MR. SNYDER: I'd like to object and point out
this is a long article written several years ago. You
are focusing on a specific part. I assume Professor
Gervais can review it for context, if it -- if he would
like.
THE WITNESS: Well, actually, I was going to
say the paper is not about what is in the database, but
is about incentives to create databases in the first
place, and make the case that the European union
approach, which was to create a specific right in
databases, does not seem to have generated more
databases. There are various explanations as to why
that did or did not happen, which I explore in the
paper.
So I -- I stand by the sentence that you've
pointed out, that content -- online content business
models presuppose accessibility, but they only will work
if there is proper compensation of creators.
BY MR. McGOWAN:
Q I see you followed your counsel's lead. My
question was, what do you mean by the word "able"?
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it?

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MR. SNYDER: Objection to form.
THE WITNESS: How do I define the word able?
That they have the ability to.
BY MR. McGOWAN:
Q And they need the ability because there's a
lot of content on the Internet?
A There is, indeed.
Q That could be difficult to find what you want?
A It can be.
Q At the end of this paragraph, you say, "Some
forms of restrictions sought by database owners almost
as knee jerk attachment to, quote/unquote, property, may
not, in the end, be their own interest."
Do you see that?
A Yes.
Q What forms of restriction are you referring
to?
A I think some types of databases. The paper
is -- makes some of these distinctions. Some types of
databases are, more naturally, going to work subject to
access restrictions, such as passwords and payments.
One example might be Westlaw Nex-Lexis, which seem to
work at that business models.
Other databases might work better if they work
on a different model. And what the sentence says is

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that to consider any use of the database as, say
trespass in the property context is incorrect, that this
needs to be contextual. You look at the database, you
look at the business models, and you should make the
call based on that, not based on a knee jerk attachment
to the fact that it is, quote/unquote, property.
Q I would like you to take a look at Page 1165
at the end in the conclusion.
A Um-hum.
Q At the end of the first paragraph there is a
quotation from Professor Cornish.
Do you see that?
A Yes, I do.
Q It says, "Industrial and commercial
developments in competitive economies have always
turned, in large measure, upon the borrowing of ideas.
Intellectual property, including rights of unfair
competition should be restricted to cases where the
borrowing is unacceptably parasitic. It should not be
allowed to become a blocking mechanism lurking in every
crevice of endeavor."
Do you see that?
A Yes, I do.
Q Did you seek Professor Cornish's permission to
quote that?

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A No, I did not.
Q Did you pay him a royalty?
A No, I did not.
Q Do you agree with his comment?
A I would not have said it exactly that way, but
I thought he made an interesting point there, in the
words, like "unacceptably parasitic" are the kind of
words that we could write books about. But I like the
way that he makes the point that this goes back to not
just Isaac Newton, but before, that we all stand on the
shoulders of the giants.
That's not -- the point of my report in this
case, is about whether there should be payment for some
online uses and how that payment can be effective.
Q You agree with the proposition that we all
stand on the shoulders of giants?
A Well, I think what I was saying is that
Professor Cornish's point follows in the same line of
thought, when he talks about the borrowing of ideas.
Q Which is a creation invariably draws on
previous ideas, previous creation?
A Yes, and Copyright has numerous doctrines from
derivative rights to idea expression dichotomy and so on
that handles the proper limits of that borrowing,
especially when it's done without compensation.

Filed 08/26/13 Page 13 of 61

Q De minimis use is one of those documents?
A I haven't looked recently at the de minimis
cases. I know there are cases about de minimis in
copyright law, yes.
Q Is it one of the doctrines that you're
referring to in that context?
A Well, the idea of a quotation of right is a
very complicated one, which was your question about
whether I sought permission.
As I indicated at the beginning of my
testimony, I consider myself reasonably versant in -conversant in international copyright. It just so
happens that the quotation right, in other words, using
a short quote in the context of creating a new work is a
mandatory exception under international treaty. It's
actually the only mandatory exception in the Berne
Convention.
And so it is my belief that taking a short
quote in the context of preparing another work is
acceptable. And because there's no specific quotation
exception in the U.S. statute, we have to rely on
doctrines such as de minimis, for example.
Q And fair use?
A And fair use.
Q This is published in the Chicago law library;
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correct?
A Yes.
Q Published in the United States?
A Yes.
Q Not published internationally, as far as you
know?
A It is distributed internationally.
Q Original publication in the United States?
A Correct.
Q Is your report in this case based on your
understanding of international laws?
A My report is really on collective management
and based on, to the extent I talk about the U.S.
statute, yes, obviously, it is based on my understanding
of U.S. law. I did not specifically write the report
with international considerations in mind.
Q Did you bring to bear in your analysis your
knowledge of international law?
A Possibly indirectly. I did not intend that,
but it is possible. It's part of what I know.
MR. McGOWAN: Let me ask to have it marked as
Exhibit 3?
THE REPORTER: 4.
MR. McGOWAN: 4, sorry.
(Exhibit 4 was marked for identification.)

12 (Pages 45 to 48)

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BY MR. McGOWAN:
Q Exhibit 4 is a -- I'll represent to you is a
printout of a web page from what appears to be the
Vanderbilt News, and it has your photograph on it.
A It does. An old one, too.
Q And it says -- you must get them to update.
A Yes, I do, indeed.
Q "Internet anti-piracy legislation is flawed,
says Vanderbilt professor."
Do you see that?
A Yes, I do.
Q The last two paragraphs of this article depict
quotations attributed to you.
Do you see that?
A Yes.
Q Did you make these comments that are here in
the last two paragraphs?
A No. The piece was drafted based on the
conversation I had on the phone with a media person at
Vanderbilt, and they sent me this draft. And then I
looked at it, and then they put it up on the website.
Q Did you approve it?
A It's, to a certain extent, media speak in the
sense that I would probably not say things exactly this
way. But I agree with the gist of what is there.

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Q Okay. This article pertains to SOPA?
A Correct.
Q What is SOPA?
A It's a bill that was pending in Congress
called Stop Online Piracy Act. And there was a Senate
version in PIPA which is also mentioned in the exhibit.
Q You say in the second sentence of the next to
the last paragraph, "Unless substantially amended, it
might reach a level of over enforcement by unjustifiably
targeting search engines that reference other sites and
also end users of those sites."
Do you see that?
A Yes.
Q What did you mean by "unjustifiably targeting
search engines"?
A I had several issues with SOPA, still do. One
reason is the one I already mentioned, which I don't
think the way to get online business models to go is to
take content down, but rather to monetize it.
Second, is I think there were provisions in
SOPA that were imposing burdensome requirements on
whether search engines or other intermediaries that
really seemed both unnecessary and normatively dubious
in the sense that this is another step in what I call
the over-enforcement of copyright against particular

Filed 08/26/13 Page 14 of 61

individual users. I would much rather see an
environment in which use is licensed and not limited in
ways that don't -- you know, that are unnecessary.
Q Now, you refer to search engines here
separately from end users.
Do you see that?
A Yes, I do.
Q What unjustifiable targeting of search engines
were you referring to when you made this comment?
A Well, there were -- I don't recall exact
language of the bill. I looked at it at the time. This
was six months ago or so.
There were burdens imposed on intermediaries
such as search engines to take down content, but also
possibly liability for simply linking to content that
was then found to be illegal, or it could be read that
way. And I thought that was actually a very difficult
burden to meet for anyone to know whether what they're
linking to is infringing or not.
Q Why?
A Because it is a very hard determination, in
some cases, to decide what is infringing and what is
not.
Q What is would be wrong with imposing liability
notwithstanding that difficulty?
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MR. SNYDER: Objection to form.
THE WITNESS: "Wrong" is a moral question.
Can you -- do you mean it as a moral question or legal
wrong or . . .
BY MR. McGOWAN:
Q Well, let me ask you in terms of the second
sentence. "This could have a chilling effect and could
damage the development of the very technology that is
revolutionizing how consumers receive information in the
arts."
Do you see that?
A Yes.
Q "Wrong" in the sense of bad effects.
A I -- I certainly think SOPA could have had
chilling effects in the way that it was written. Again,
I don't recall the exact language of the statutes, but
it seemed overbroad, in particular, in dealing with -- I
believe there were felony provisions dealing with even
individual users. I really think that's excessive.
So I basically did not like the legislation.
I was -- I am not against efforts to enforce copyright.
I just think this effort was excessive, and I think it
was defeated for that reason.
Q You refer to the very technology that is
revolutionizing how consumers receive information in the

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arts.
Do you see that?
A Yes.
Q What is that technology?
A Again, I didn't -- I'm not the author of the
quote, although I agree with the gist of it. I think
the technology is, in one word, online and that would
include anything from computers to mobile devices to
access to digital content, generally.
Q Search?
A Search would be part of it, yes.
Q And although, as you have said, you didn't
really draft this, you reviewed it and authorized its
publications?
A I agree with the gist of it. As I said -THE REPORTER: "Authorized its . . ."?
MR. McGOWAN: Authorized its publications.
THE WITNESS: I answered that question, I
believe, already.
BY MR. McGOWAN:
Q And your answer is "yes"?
A The answer is I agree with the gist of it. I
made a point that the language seemed a little media
speak to me, which is not the way I typically write,
but . . .

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Q I'm referring to the process of its
publication. You received a draft; correct?
A Yes.
Q You reviewed it?
A Yes.
Q And you said it was okay for Vanderbilt to
post?
A Yes.
MR. SNYDER: I think we've been going about an
hour.
MR. McGOWAN: Yeah.
MR. SNYDER: Let's take a couple of minutes.
MR. McGOWAN: Fine.
VIDEOGRAPHER: Off the record at 11 a.m.
(Recess taken.)
VIDEOGRAPHER: On the record at 11:12.
MR. McGOWAN: Professor Gervais, I'm going to
mark as Exhibit 5 one of your articles.
(Exhibit 5 was marked for identification.)
BY MR. McGOWAN:
Q An article published in the Fordham
Intellectual Property Media and Entertainment Law
Journal.
Did you write this?
A Yes.

Filed 08/26/13 Page 15 of 61

Q And direct your attention to Page 982.
A Yes.
Q At the end of the first carry-over
paragraph -A Um-hum.
Q -- adjacent to Footnote 271, you state, "One
major advantage of e-content is that it can be
word-searched and previously unavailable archives are
often searchable as well."
A Yes.
Q What did you mean by that?
A Well, first of all, the paper was written 11
years ago, one thing to bear in mind. But what I was
trying to say at the time was that I thought -- I was
trying to figure out what would change the title of the
piece, is where the challenges are coming, to
intellectual property and, in this case, copyright.
And I was trying to explain that there is an
advantage to having content available digitally because
it can be word searched, whereas if you have the paper
version, that is, obviously, harder to do.
Q Why is it an advantage that it can be word
searched?
A There's types of content of which that is
advantageous. I would think for many types of
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nonfiction content, in particular, that would be
advantageous.
Q What advantage would it provide?
A It would allow a user to locate the parts of
the work that are relevant for that user's purposes.
Q On Page 983 -A Um-hum.
Q -- the first full sentence after the call for
Footnote 275, you say, "Sometimes only an abstract or a
few seconds of the song or film trailer are available to
illustrate the content, but fees are charge to download,
view, and listen to the complete work.
Do you see that?
A Yes, I do.
Q What are you referring to there?
A Well, this was -- I hope makes clear about
music and film that consumption model for music and film
is sometimes that the user will access, in the case of a
film, an actually authorized trailer which is
essentially an ad for the film made available by the
producer or the film studio. And for a song, there are
services.
At the time these were only very beginning.
But now they're fairly common where the user will be
able to listen to parts of the song. There are debates

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as to whether that is a use that needs to be licensed or
not. And then the user obviously will access, who
wishes to access the full work, will then get a licensed
copy of the entire song or movie, either by download or
stream.
Q So the abstract for a few seconds is free and
then the full content is paid?
A In those cases, yes.
Q Is it your testimony that your discussion in
this article is limited to sound reportings and film?
A No. In that sentence, I think that is the
context.
Q Is there any reason that sentence does not
apply to text?
A Well, it -- it could be, yes, that there would
be differences between, for example, certain types of
nonfiction content, where once you have figured out a
few snippets of the book are sufficient, and you no
longer need to access the whole work. This would hardly
make sense for a song or film, unless the user is
obviously not interested in the content at all.
Q Unless they just wanted to hook to the song;
right?
A The hook is a technical word in music, so I'm
not sure what you mean.

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Q The hook meaning the characteristic portion of
the song.
A And that may or may not be the excerpt that is
made available. And again, that is a decision that is
typically made by whoever's making the song available
online, whether they make the first 30 seconds
available, the first five seconds, the hook. I do not
know if there is data as to what parts of songs are made
available in this form.
Q Now, we are going to talk about this in detail
later. But you just said it's possible that somebody
could look at a snippet of text and be satisfied with
it?
A Yes.
MR. SNYDER: Objection.
THE WITNESS: It is possible.
BY MR. McGOWAN:
Q How do you know that? Have you studied it?
A I have done it myself.
Q What text?
A I don't recall. In using both before and
after preparing this report, I have used a Google book
site, and very often was -- I got a snippet; sometimes
might be for a quote, but I would use for other purposes
to get information that was in the book. And I no

Filed 08/26/13 Page 16 of 61

longer needed to access the whole book.
Q Okay. So other than your personal practice,
which we will discuss, do you know any person who has
foregone the purchase of a book because they saw a
snippet?
A I can't recall anyone specifically.
Q You didn't talk to anyone who did so in
connection with this report; correct?
A In connection with this report, no.
Q Have you performed any studies to determine
whether this possibility you hypothesize is a reality?
MR. SNYDER: Objection.
THE WITNESS: Which possibility?
BY MR. McGOWAN:
Q The possibility that somebody would forego a
purchase because they saw a snippet?
A No, I did not study that empirically.
Q And you didn't actually say that anyone would
forego a purchase, did you? You just said they might
see what they wanted to see in a snippet; correct?
A I think I said they no longer need the whole
book. Whether they acquire the book, go to a library,
or other form of access, would be -- you know, depend on
many factors, availability, for example.
Q So the testimony that you just gave, you're
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not actually saying that the snippet is a substitute for
a purchase; correct?
A I actually said it could be, yes.
Q Okay. You said it could be, and you haven't
studied it; correct?
A I'm referring to personal experience only.
Q Which book were you willing to purchase until
you saw a snippet?
A I purchase a lot of books for my research
because I like to write in the margins. And, therefore,
I have limited use of library books. Occasionally, I
have used snippets on Google. And because of technology
restrictions I will make a screen capture and then put
that in a PowerPoint slide. And then I have that page
print and write in the margin, so I have a copy of the
page. I've done that on a couple of occasions. I don't
recall the exact titles of of the book. But I did do
that on a few occasions.
Q Were you otherwise planning to purchase the
whole book for the one quote?
A It's actually not as easy to annotate,
obviously, a printed PowerPoint. But it was sufficient
that I did not need to spend to buy. These books are
very often nonfiction books that can be scholarly books
too. They are expensive sometimes. Some cases I

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probably would have bought the book.
Q Which cases?
A I would have to go back in my research over
the last couple of years. I may or may not have some of
these PowerPoint files. Usually when I finish the
paper, I don't necessary keep all of that, but I may
have kept some of them. I don't know.
Q You don't recall the books; correct?
A That's right.
Q You don't recall the snippet; correct?
A No, but I do recall using the technique that I
just described.
Q When I say "snippet," the segment of text that
you used, what did it say?
A I don't remember.
Q Did you review these files in connection with
your report?
A No.
Q How many books would you say you would have
purchased had it not been for these snippets?
A I can't say. I would have to go back and
check. I don't know.
Q On Page 985 of your article carrying over to
Page 986, you say, "To put it simply, for all content
providers, digitization is inevitable and it is a

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resource to be harnessed, not feared."
Do you see that?
A Yes.
Q Why is it not to be feared?
A Well, again, this paper was written 11 years
ago. And the discussion at the time was very much about
whether content should be available online. I've
since -- actually, before this paper, I believe my first
paper on the topic goes back to 1998. I've been saying
that the proper way to use the Internet is to make the
content available, not to restrict access to the
content, although there would be various business models
that accommodate different types of content.
My point simply is that because I believe this
is a major mode of access, that there should be a way to
monetize this type of use for the content creators. And
actually, I believe I used the word "inevitable" in my
report itself.
Q You do. Why did you use the word "fear" here?
A Because it was very much a fear in the those
days. The large publishers, the record companies, and
others -- the film companies were all discussing how
much content should be made available online and how.
And the business models hadn't really started to emerge
again 11 years ago.

Filed 08/26/13 Page 17 of 61

This is one year after the Napster injunction
was issued. We are in the very early days of business
models. So I was trying to make the point that -- and
the metaphor in the following sentence you see that the
Internet train is coming, it will not stop.
I don't think it can be any clearer than that.
Q Why won't it stop?
A Because the Internet is a technology that is
very difficult to stop, as record companies have -would probably be able to tell you more -- better than
me. But my point is more of a normative nature. I
don't believe it is desirable to make -- to take content
off the Internet in most cases. I believe, however,
that creators should be compensated for many online
uses.
Q It is not going to stop, in part, because it's
useful to consumers?
A It's not going to stop, first, as a matter of
of technology. The Internet, as I understand the story,
was designed with a grant from the Department of Defense
of United States as a network that is inherently hard to
control. And as I said, my point is more of a normative
nature. I think it is a good, desirable thing to make
content desirable -- to make content available online.
I believe I say so in my report.

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MR. McGOWAN: Mark as Exhibit 6.
(Exhibit 6 was marked for identification.)
THE WITNESS: Well, there we go, 1998.
BY MR. McGOWAN:
Q A document entitled Advisory Committee on
Management Copyright and Related Works -- and Related
Rights in Global Information Networks.
Your name is listed on the first page.
A Um-hum.
Q Do you recognize this document?
A I do. It's actually the document that I was
referring to earlier. It's my first paper on the topic.
Q On Page 8 -A Um-hum.
Q -- of this document, in the next to the last
paragraph, you say, "For individual creators, this new
technology means access to existing material creating,
as it were, a realtime universal library of ideas and
content."
Do you see that?
A Yes, I do.
Q Why is that important for individual creators?
A Well, I believe we touched on this earlier,
the idea being that creators rarely create in a vacuum.
They very often look at what's already available,

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especially in the nonfiction world. People will want to
know what's already published or what information is
already available.
And this paper, which I consider reasonably
perceptive for something that was written in early 1998,
over 14 years ago, made the point that digital networks
should make it easier to get access to information.
Q Because it's useful to creators?
A It is useful to creators and others, yes.
Q You then say, "Digital networks allow access
not only to various manifestations of protected works,
but to information generally. And many users are, in
fact, submerged by this worldwide flow of information.
Without management, information is practically
inaccessible and cannot reach a proper audience."
Do you see that?
A Yes.
Q What do you mean by that?
A Well, this is an inquorate version of the
point I was making, that I have made subsequently about
the -- the need for information to be available out
there so that connections can be established between the
users and the content, users who value the content then
the content.
I was -- you see the germ of this idea here,

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if I can call it that, that obviously information being
made available online, there's then a challenge to
locate it. It's a challenge that is, in part, a matter
of search; in part, a matter of nowadays social networks
and other tools that people use to find information
online.
There are several ways that people can locate
information, but they need information tools of one form
or another.
Q At the top of Page 9, you say, "Finding the
material that one wants or needs is a challenge."
And then the last sentence in this paragraph
says, "To answer these" -- "The answer to those
questions really depends on the quality and intelligence
of search engines, hopefully ECMS providers will be able
to rely on advance search engines to help users locate
what they need.
Do you see that?
A Yes.
Q ECMS in this paper refers to what?
A It's a term that was used early in the days of
the Internet. It stands for Electronic Copyright
Management System. In those -- in more recent parlance,
I suppose, one might call it rights management system.
And in those days, essentially there -- this

Filed 08/26/13 Page 18 of 61

was pre-XML and other types of tools of that nature, so
that we were very much using word searches in the type
of search engines that are mentioned later in that
paragraph.
Q And what will, in this context, ECMS use
search engines to do?
A ECMS basically managed copyright by providing
metadata as to who is the author and owner of the work
and can also provide information on at least where to
get a license or, in some cases, even what the licensing
terms might be. It's a point made later in the paper
that what should happen on the Internet, which is the
same point I've been making for those 14 years, the
content should be available online; however, creators
should be compensated for uses when this is appropriate.
Q On Page 31, if I can ask you to turn there.
A Yes.
Q The second full paragraph beginning "ECMS."
A Um-hum.
Q Says, "ECMS should also be flexible enough to
allow users to access material in such a way that they
know what they are buying."
A Yes.
Q Why is it important for users to know what
they are buying?
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A I'm not sure how to answer that question. I
assume that buyers want to know what they're buying.
Beyond that, the sentence, I think, speaks for itself.
Q It makes them more willing to engage in the
transaction?
A Well, you cannot want to turn to a transaction
to buy something you don't -- you don't know what it is,
but you don't necessarily need access to -- as I said
earlier, if you know the song you want by title, you
don't need the excerpt. It depends on the context and
the type of content we're talking about.
Q So you think for some types of content, people
will buy what they don't know about?
A No. They will know enough from, say, the
title. I will buy every novel by certain authors, for
example. I don't need to read an excerpt. I will just
download or buy the book, because it is a new book by a
certain author. So I don't need more.
Q And that's because you're familiar with the
author's work from previous exposure?
A Usually, yes.
Q And you'll extrapolate from your previous
exposure to your probable consumption experience on the
new book?
A Correct.

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Q Is that what you mean when you say sometimes
people just need the title of a song?
A That's part of what I mean. What I also mean
is I know my -- one of of my teenage daughters will
download a song on iTunes if a particular friend
recommends it, she will not hesitate. She will just do
it because a friend recommended it and then she goes by
the song title.
Q So word of mouth would be one way?
A Word of mouth is another way.
Q Which would be a way of gaining familiarity
through the recommendation of a trusted third party?
A Yes. You could stretch that, I suppose, to
include that.
Q You say, "For example, a viable commercial
model might allow users to browse part of the content
for free, a few pages of an article, 30 seconds of
music, a film trailer, et cetera, or the work at reduced
graphic resolution; e.g., for photographs, while full
viewing, reading, listening would require payment.
Do you see that?
A Yes.
Q Are you aware of such models being used on the
Internet?
A Well, this paper was written, as I said, 14

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years ago. I was trying to feel my way in the dark,
this being one of the first papers on the topic as to
what might emerge as possible business models. I
certainly did not, at the time, have in mind any of the
current practices online.
Q You are aware now, however, that this model
is, in fact, employed?
A Yes.
Q It's employed in publishing?
A It's employed in publishing and -- music
publishing and in film trailers, yes, at least.
Q Have you ever seen anyone do the reverse,
which is offer only a few pages of text, but not offer
to sell or display an entire work?
A Yes.
Q What sources are those?
A Well, I think it's very common for a publisher
to put an excerpt from a forthcoming novel, for example,
available without making the work available -- as a
temporal matter it is not available at the time when the
excerpt is made available.
Q The author does that or the publisher does
that because they want to drive sales when the book is
released?
A I don't know. It is possible.

Filed 08/26/13 Page 19 of 61

Q Are you aware of any models in which some text
is made available, but there is no expectation by the
person displaying the test -- text that it will make a
future sale?
A I -- yes. I can think of situations where a
work would be made available -- part of a work would be
made available to test the waters, see if there might or
might not be a reaction to that excerpt, and then maybe
the decision will be made not to make available the
whole work.
Q Are you hypothesizing or speaking from factual
knowledge?
A I can't recall a specific example, but I
think, with time, I could.
I can, yes, recall one example of a play that
was controversial, and then the parts of the play were
made available. There was a public uproar. This was in
Canada, years ago. And then the play was never
released.
Q When you say "made available," what do you
mean?
A I think they were -- I can't recall if they
were selling or distributing the excerpt from the play
at the time.
Q Are you -- so you don't know whether there was
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any payment?
A I don't know.
Q Are you aware of any publisher that charges
for a chapter of a book, but does not sell the full
book?
A Well, other than the temporal issue that I
mentioned earlier, I am not aware of a specific case,
no.
Q You agree today that the model that you
describe here is a viable commercial model?
A It certainly seems to have worked for music
and film to make parts available. Obviously, at the
time I had no idea that social networks would emerge the
way they have, which have changed the equation to a
certain degree. And I think for a book or an article,
it might make sense for a publisher, depending on
context, to make a few pages available, yes.
Q You have read the expert report of Bruce
Harris; right?
A Yes.
Q And you've seen the examples he provides;
correct?
A I recall scanning them, but I can't say I have
them fresh in mind right now.
Q Do you have any factual basis for disagreeing

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with the conclusions he reaches about these use of text
in his report?
MR. SNYDER: Objection to form.
THE WITNESS: No specific examples.
BY MR. McGOWAN:
Q In this paragraph, you say at the end, "The
highest level of right, i.e., the right to commercially
reuse material, would require a higher level of
clearance."
Do you see that?
A Yes.
Q Is the concept that you are conveying in this
paragraph that for greater uses, greater payment may be
expected?
A No, the -- not necessarily. The idea is that
some type of transactions, when I say higher, means it
may be the payment, but it's certainly the transaction
itself will be typically more complicated when
commercial reuse is involved. The contract may very
well be negotiated, as opposed to being a form that is
used for mass uses.
So my view at the time, again, 14 years ago,
was that for these type of content reuses, it may not be
possible to automate the process.
Q Do ECMS providers usually use form agreements?

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A I have not done an empirical study of how ECMS
provides use forms. I know some of them do use forms.
Q You mentioned earlier that you have sometimes
found text that you're interested in in a snippet and
made a screen shot of it.
Do you recall that?
A Um-hum.
Q In those cases, would you be able to make the
same use by photocopying a page?
A Probably.
Q Did you consider that as an option for putting
together your PowerPoint?
A I have done that. And I don't know if they
were in the same cases, but I have photocopied pages so
I could annotate when I don't have my own copy of the
book. Obviously, I don't write in library copies.
Q On Page 24 of your WIPO report.
A The same document you were referring to?
Q Yes.
A Yes.
Q You refer to U.S. Marc, M-a-r-c.
A Yes.
Q What is U.S. Marc?
A Oh, you're taking me back 15 years or so.
Marc was a database that, I believe, was put

Filed 08/26/13 Page 20 of 61

together by the Copyright offices as a part of the
Library of Congress of the United States and other
metadata providers. And so again metadata -- oh, it's
described on Page 25. I haven't looked at Marc in 15
years, so I need to refresh my memory here.
But I -- I believe the description on Page 25
is accurate. I have no reason to doubt that I got it
wrong at the time.
Q You have no reason to question what you wrote
at the time? I think you said you have no reason to
doubt that you got it wrong.
A I misspoke.
Q That's what I thought you meant.
What do you mean -- what do you mean by
"metadata"?
A Metadata in copyrite -- well, it depends on
the type of work, but it would typically be, at the very
least, name of the author, year of publication, the
title, the publisher, producer -- producer in the case
of music or film, for example. It might include the
country of first publication. It might include the
birth year of the author and the birth -- the year of
death, which is important to calculate copyright term.
Obviously, this is if the author is deceased.
So it's basically information about the work.
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Metadata is data about data.
Q Who creates them?
A Many people do. Publishers have metadata that
they generate. Author associations, collectives,
governmental organizations. A lot of people create
metadata.
Q You wrote this document while you were at the
Copyright Clearance Center; is that correct?
A I believe I -- yes. I -- I switched -- this
was written early in '98. It was for a meeting in late
'98, but I believe I wrote it fairly early in '98 for an
international meeting in Geneva on -- on, as the title
indicates, how rights would be managed and copyrighted
works identified in, what at the time we called, global
information networks. We could maybe simplify to online
environment.
Q Does this document state the position of the
CCC at the time?
A It does, right on the cover.
Q Let me ask you to return to your report, which
is Exhibit 2.
Do you know whether you listed your report in
the Elsevier case in this report here?
A I don't think I did. I -- I believe -- I
believe I had to list cases in which I had been examined

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or deposed, and I haven't been in that case. So I did
not list it, no. Nor did I consider it in preparing the
report.
Q Sure. Did you read Rule 26?
A Not recently.
Q Did you read it in connection with this?
A No, I don't think I reread it in connection
with this.
Q Okay. What year was the Elsevier report?
A Three years ago. Three or four years ago.
Q Within four?
A I believe so. I would have to check.
Q In Paragraph 13 of your report, you say,
"Making books and other copyrighted works available
online" -A Which paragraph.
Q 13?
A Paragraph or page?
Q Paragraph 13?
A Okay.
Q Page 4.
A Um-hum.
Q You say, "Making books and other copyrighted
works available online is desirable for both -- "both
for authors and readers."

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Why is it desirable for authors?
A Because it's a very interesting way to make
some forms of content and increasing all forms of
content available to users.
Q And in some forms here, you specifically
mention books?
A That's right.
Q When you say "interesting," what do you mean?
A Well, I would think that for authors, it is a
quick access to a potentially worldwide dissemination
network of their works. And so that would be an
interesting way to be published. And I understand that
there are, in fact, increasingly authors who
self-publish, using this technology, which I think is
another use that is desirable for authors.
Q Where did you gain that understanding?
A Press reports. But I can't recall one
specifically.
Q When you say "available," making books and
other material available online, what do you mean by
"available"?
A Well, in the case of a book, it depends,
again, on the type of book. If it's fiction, I would
presume that it's the entire book. If it's a nonfiction
book, it may or may not be the entire book.

Filed 08/26/13 Page 21 of 61

Q Have you talked to any authors about the
distinction you just drew between fiction and nonfiction
books?
A Not for the purposes of preparing this report.
But that is a discussion I remember having a number of
times at conferences on panels with people who work for
trade associations and others representing authors and
publishers. And I've heard the distinction made between
fiction and nonfiction, made a number of times.
Q And have you talked -- so in these
discussions, those include publishers as well?
A Occasionally.
Q Do you remember any specific names of
publishers?
A Again, I did not speak to any publisher for
purposes of preparing the report, so nothing recent.
Q I'm just asking about the conversations you
just mentioned.
A I can recall one conversation only
specifically with a lawyer from Wiley. But I can't
recall his name.
Q Do you remember what he said, or she said?
A He was a he. Not specifically, no. But -but it was about what you -- you know, making -- Wiley
is a publisher of the journal in which I am editor in
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chief. And we were discussing online, and we moved from
from the distinctions between articles and books. And I
don't recall the specifics of the discussion, but that's
the way the discussion generally went.
Q What distinctions between articles and books
did you discuss?
A That it is -- that the markets may be a little
different for both. He indicated that, but I don't,
again, recall -- this was at least two years ago -- that
books respond differently, I think is the word he used,
to online availability. But I -- I honestly cannot
recall specifically more than that.
Q Do you recall in these discussions any
particular conversation with an author? And what I'm
looking for is the name of any author.
A I was in the panel in Washington at the
American Bar Association, I believe, last February. And
there was a lawyer representing authors on the panel.
And I believe she made that distinction. But I do not
recall her name. But it should be easy to locate.
Q In Paragraph 10, you begin to summarize your
opinion.
A Yes.
Q You mentioned that you used Google books
yourself?

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A Yes.
Q When did you first use it?
A Don't recall. Well before I prepared this
report, though.
Q Have you used it regularly since you began
using it?
A I would say occasionally more than regularly.
Q Once every two months, once every three
months?
A Something like that.
Q Did you have -- have you used Google books in
connection with your scholarly work?
A Occasionally.
Q As a way finding materials that you use in
connection with your work?
A Occasionally.
Q In Paragraph 10 you say, "It is my
understanding that Google has engaged in the digital
copying of millions of books in libraries."
A Um-hum.
Q And you gain that understanding from?
A From -- you're asking me from where?
Q Um-hum.
A This was from the material that I reviewed
that was filed in the case. It was, I believe, a

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declaration made by somebody from Google. His name
escapes me now, though.
Q Um-hum. Are are you also familiar that Google
has, in Google books, some books that originate with
publishers?
A I have heard of something called the Partner
Programs, if that's what you're referring to. I haven't
looked into that specifically more than what is
described in the material that is in Exhibit B.
Q Do you have any understanding of the Partner
Program?
A I believe some books are made available
voluntarily by publishers for access via Google books,
but beyond that, no, I don't.
Q Did you know you have a book in the Partner
Program?
A No, I didn't know I had a book in the Partner
Program.
Q You were the editor.
A Okay.
Q Do you know how much text is available to
people who search books -- is made available to people
who search books in the Partner Program?
A No, I don't.
Q You say -- strike that.

Filed 08/26/13 Page 22 of 61

Do you know how many publishers have joined
the Partner Program?
A No, I don't.
Q Do you know that it is over 45,000?
A I have no reason to doubt your number, but I
don't know.
Q Did you consider it important, in drafting
your report, to know the extent to which publishers deal
with Google already?
A Well, the -- the gist of the report is that
there is, in copyright, of an exclusive right in books,
but my point is that it is not -- it shouldn't be used
mostly to take content off the Internet; rather, to make
it available in a way that is monetized.
It is obviously up to a right holder, for
example, to make a decision that they want the content
available without payment. That is a possible use of
copyright to make it available without payment.
But I believe that for authors in particular,
if this becomes a major form of distribution, they
should have the option of monetizing these online uses.
Q We'll talk about that in a moment. My
question is did you consider, in drafting this report,
it important to know how publishers deal with Google
books?
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A I don't understand exactly what you mean, how
publishers deal with Google books.
Q For example, the amount of text that they make
available to be browsed freely?
A I would assume that's a decision they make
case by case on the book, but I don't know specifically
how each publisher arrives at that decision.
Q Was it important to you, in talking about the
contract behavior to understand the contracting behavior
of publishers?
A I'm not sure I understand the question.
Q Do you understand what a contract is?
A Yes, I do.
Q Do you understand what contracting behavior
is?
A That's where I -- I'm trying to understand
when you say -- whether publishers decide to use a
certain service as a tool or not, doesn't mean that
there cannot be a licensing market, especially on the
author's side, for use of that content.
So I'm trying to see, when you say contracting
behavior, what exactly you're referring to.
Q The terms on which publishers voluntarily join
Google books, was that important to you in opining about
contracting behavior in your report?

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A Yes, to the extent that I reviewed the
proposed settlement and looked at what uses authors and
publishers were willing to license in that draft
settlement.
Q Did you review the draft settlement in
connection with your preparing your report?
A I had reviewed the draft settlements well
before a year ago or two when I wrote a paper on the
Google book settlement in international law. I did not
review the settlement after being engaged in this
report.
Q Does your report rely on the settlement?
A It doesn't rely on the settlement, but I have
knowledge of the settlement.
Q Does it rely, in part, on your understanding
of the settlement?
A It's something that's in my mind, so to that
extent, it's possible that I -- it's something that I -that, you know, I have relied on indirectly, but I have
not relied on it directly.
Q Okay. setting aside the settlement, was it
important in your opinion about contracting to
understand what, right now, publishers are doing in
their agreements with Google as they pertain to Google
books?

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A Well, I don't know what each publisher is
doing specifically with Google books at this time. It's
something that might be relevant if there was a
licensing system to be put in place. The report, the
opinion is as to whether there is a potential collective
licensing market here, to which I answer in the
affirmative.
I don't need to know the specifics of the
existing contracts with publishers to know what the
exist -- what the market exactly would be in such a
negotiation. Presumably, there would be a discussion of
what uses need -- need to be compensated and which, if
any, need not be compensated, or in which publishers
need not be paid.
That is a negotiation that is not -- that does
not change a conclusion that there is a collective
licensing market that could develop here.
Q You're not opining in this case on the terms
that would actually be reached through a collective
licensing market?
A The exact terms, no.
Q You use the word "distribution" in the second
line of Paragraph 10.
A Um-hum.
Q Do you intend to use that as a legal term of

Filed 08/26/13 Page 23 of 61

art?
A No. The opinion is not about infringement,
and so I did not specifically refer to distribution in
that specific context. It's really a word that could be
making available or other similar terminology.
Q Yet, the clause says, "distribution of digital
copies of these books to libraries."
Do you know how that process actually happens?
A Only what I've read in the materials that were
filed in the case that -Q And what -A -- I reviewed.
Q Sorry. What is your understanding?
A Of the copying or the distribution?
Q Of the manner in which libraries may obtain
copies?
A I understand that there is a -- that -- that
these digital copies are made available to libraries. I
believe there is a password or other form of
technological restriction in the way that the books are
made available. That is the essence of my understanding
of how that works.
Q Prior to Google books, were you aware of any
digitization projects in which full texts of books could
be searched?
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A Well, there are, or have been, small scale
efforts to digitize books. I know some publishers have
digitized some older titles. And I believe some foreign
libraries have engaged in that conduct. But I can't -I don't know the specifics, in particular, whether those
uses were licensed or not.
Q They -- when you say smaller, they were less
comprehensive?
A That's correct.
Q In the second sentence of Paragraph 10, you
say, "I have been asked my opinion, A, whether
collective licensing markets will continue to develop
for the digital uses of books."
A Um-hum.
Q Do you see that?
A I do.
Q Markets. How many markets -- well, strike
that.
You say, "continue to develop." Is it your
testimony that there are presently collective licensing
markets for digital uses of books?
A Yes.
Q How many?
A Several.
Q Three, four?

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A Depends how one counts. It's a matter of how
you categorize them. So it's very hard to answer the
question numerically.
Q How do you categorize them?
A In the report I don't categorize them.
Q Do you categorize them as a matter of your own
understanding?
A Not in -- in a way that could be numerically
identified as such. I think there are markets for
anything from electronic course backs to reuses of text
on -- on websites, to excerpts in -- online and other
publications, to use of text in online advertising.
There are some -- these could be identified as
separate markets or not. It's a matter of market
definition. My report does not opine on market
definition here, but there are clearly existing and, I
would think, future markets for digital uses of books.
Q And you are not an expert on market
definition; correct?
A That's correct.
Q So we're going to look at markets and say
there's more than one; we don't know the precise number.
Fair?
A Fair.
Q "Continue to develop for the digital uses of

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books."
What uses are currently licensed in these one
to more markets?
A I would think there are major existing markets
in the reuse of excerpts of books in paper and
electronic course backs. I don't know the exact number,
for example, of CCC issued licenses in that area, but it
is very substantial. There is a licensing market for
corporate and other entities of this type -- corporate
users and entities of this type to put content on their
intranets or other similar networks. There are
licensing markets for reuses of parts of books in the
creation of other books. It can be anthologies or
things of that nature.
These markets exist. I do not have numbers to
the extent to which they generate revenue. But in the
case of CCC specifically, it is a significant part of
their income. There are other entities that do this.
icopyright.com would be an example.
Q icopyright.com?
A Yes. That would be another example of a
company that does specifically only digital licensing of
digital reuses of text, not just books, but text.
Q And what do they license -- they license any
kind of text?

Filed 08/26/13 Page 24 of 61

A I don't know if they license every type of
text. I -- I haven't looked at their exact list of
titles. I think they license almost essentially -essentially nonfiction material. But it's not a company
that I know extremely well. I just know they exist and
generally what they do.
Q What is the source of your knowledge?
A I have certainly been on their website a few
times. I have, years ago, met somebody who worked
there, but this was at least seven or eight years ago.
So I don't recall the name the person. It was at a
conference somewhere.
Q Do you know to whom they license?
A No, I don't.
Q Do you know whether they license trade books?
A I don't.
Q What uses, as you use the term here, do you
understand Google to make of books as relevant to your
report?
A Well, they make a full copy of books. Then
they make available those books to libraries in a way
that includes, as I said earlier, some technological
restrictions. And then they make snippets available to
the general public.
Q Anything else?
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A Those are the three that come to mind.
Q With respect to the licensing market you opine
on in your report, are these the only uses that will be
traded in that market?
A I -- I can't say they're the only uses. And I
can't say that all three would be. But these are
certainly three candidates that could be licensed, yes.
Q Does Google make available through the Google
books program the full text of any book, as you
understand it?
A I believe I read somewhere that it may do this
for public domain books, but I haven't seen that myself.
Q Fair clarification. In copyright books?
A Not to my knowledge.
Q Is full text display in copyright books
something that will be traded in the licensing market
you opine about in this report?
A That would be something to be negotiated
between the parties.
Q In Paragraph B you say, "Whether unrestricted
and widespread conduct of the type engaged in by Google
will harm the development of such markets."
Do you see that?
A I do.
Q What do you mean by "unrestricted"?

23 (Pages 89 to 92)

A-1472
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A Unlicensed.
Q Unrestricted means unlicensed. What do you
mean by "widespread"?
A Well, obviously if we were talking about five
books, making them available would not have the same
impact as several dozens of millions of books. So
widespread basically means which part of the potential
licensing market, if we were to look at it as a
horizontal plane, which part of that plane is captured
by the making available by Google.
If it's essentially all books, say, in the
English language or all books published in the
United States or some extremely important subset of all
books, then obviously that greatly reduces the
possibility that a licensing market would emerge
successfully for the rest.
Q For the rest of the books?
A Correct.
Q You say "obviously." Is this something you
studied?
A I have to answer yes to that. That is
something I've been working on for quite awhile.
Q Tell me what that work entails?
A Well, it's my work inside of Copyright
Collective, and my work at WIPO, and my work as law

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professor in part dealing with collective management of
rights. Collective management of rights has three
parts. I have compared it in a book chapter that we may
come to later in that book entitled Collective
Management of Copyright Related Rights to a plumbing
system where you need water to come in, water to be
processed, and water to be pumped out.
And the incoming part is composed essentially
of rights. So if there is no right to license, there is
very little to pump or process. So that would be the
shortest answer I can give you.
Q People license different uses, don't they?
A Yes.
Q So it's not the fact of copying that would
preclude a license market for other uses, is it?
A The fact of copying books?
Q Sure.
A Well, there might be a market in the copying
of the books themselves, that if there is no right to
prevent the copying or to license the copying, that
prevents that market from emerging.
Q All right. Have you studied that?
A I would give the same answer earlier. You
need rights to license, you need water to come to the
mill.

Filed 08/26/13 Page 25 of 61

Q You're not an economist; we've established
that.
A That's correct.
Q Okay. When you say you need rights to
license, if you don't have rights, then you can't
license. That's your point?
A My point is, as I begin Paragraph 11, I say,
"If the uses are not fair uses, then there will be a
licensing market. Conversely, if the uses are fair
uses, then there is no or very small licensing market
that would be possible.
Q Because if it's a fair use, you don't need
permission?
A That's correct.
MR. McGOWAN: We need to change the tape, and
it's 10 after 12:00, so if you guys want to grab lunch,
that might be a fine time.
THE WITNESS: Fine by me.
VIDEOGRAPHER: This is the end of Disk 1. Off
the record at 12:07.
(Lunch recess taken.)
VIDEOGRAPHER: This is Disk 2 of Daniel
Gervais. On the record at 12:54.
BY MR. McGOWAN:
Q Professor Gervais, let me direct your

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attention once more to Paragraph 10 of your report.
I want to make sure that I understand your use
of the word "widespread" in Subpart B of Paragraph 10.
If I understood your testimony before lunch correctly,
widespread refers to the fractions of books that would
be encompassed in a particular endeavor; is that
correct?
A Well, I don't know what you mean by
"particular endeavor." I mean in my report I believe
there is an existing and future market for digital uses
of books. If those uses are determined not to be
covered by copyright right, then -- or if a lot of the
books are in -- are already in a program such as Google,
then that leaves the space for others.
Q So widespread refers to books, not users; is
that correct?
A Those two are linked. So you -- there would
be, obviously, more uses if there's more content. So I
would not associate the two.
Q Okay. Is widespread referring to other people
or companies who might undertake book search projects?
A Well, it says engaged in by Google -- of the
type engaged in by Google, so it could be done by
others, yes. But at this point, I'm referring to
Google.

24 (Pages 93 to 96)

A-1473
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MR. McGOWAN: I'm going to have marked as
Exhibit 7 a document captioned, "Written Comments
Copyright Clearance Center."
(Exhibit 7 was marked for identification.)
BY MR. McGOWAN:
Q Do you recognize this document, Professor
Gervais?
A Vaguely.
Q Your name appears on the last page?
A Yes. I -- I remember having something to do
with this document. I don't -- I think it was a team
effort in terms of drafting. And I think the decision
was that I would be the point person for follow-up, yes.
Q You participated in the drafting?
A I did.
Q You were the point person?
A Point person for follow-up.
Q On Page 5, in the first full paragraph, in the
middle of the paragraph this document discusses the
electronic course content service.
Do you see that?
A I'm sorry. Where are you exactly on the page?
Q In the second sentence following the colon.
A You're in the second paragraph? Yes.
Q The first full paragraph.

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A Yeah, the first full paragraph.
Q So following, colon, ECCS includes standard -A Yes.
Q -- limitations -A Correct. I see that.
Q -- on the amount of material that may be used?
A Um-hum.
Q What were those limitations at the time this
document was written?
A I don't recall.
Q Do you know currently whether the ECCS program
at the Copyright Clearance Center has standard
limitations?
A It certainly has its limitations. I don't
know how standard they are or if they differentiate by
each, you know, title or type of material.
Q Did they differentiate by title and type of
material at the time you prepared -A I don't recall. This is just too long ago.
Q Were the terms -- strike that.
Were the forms employed in licensing in the
ECSS program standard forms?
A You mean ECCS?
Q Yes.
A Would the forms -- my job at CCC was foreign

Filed 08/26/13 Page 26 of 61

and rightsholder relations. I did not do much work on
the user side. I would not have been involved in
preparing or negotiating otherwise those contracts for
ECCS users, which would typically be, I assume,
higher -- higher education users.
Q At the end of this paragraph there is a
reference for service fees.
Do you see that?
A Yes.
Q And you mention those also in your report?
A Yes.
Q What is the service fee you're referring to in
your report?
A Well, collectives typically charge service
fees. CCC is no different. It charges a service fee.
I think on this program -- but this would be subject to
verification -- I think they charge a service fee both
to the user and rightsholders authors and publishers,
but I'm not sure.
Q You didn't look that up in connection with
your report?
A My report is not about ECCS specifically so,
no.
Q Would it encompass the type of use you discuss
in your report?
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A Electronic course backs are one of the types
of uses of online -- online uses of books that is
mentioned in Paragraph 10, yes. Whether or not there's
a fee charged on one end or both really doesn't change
the substance of my conclusions in any way.
Q Do you know in the hypothetical world in which
there would be a license emerge from the type of
bargaining you describe in your report whether it would
have a service charge?
MR. SNYDER: Objection to form.
THE WITNESS: Well, collective has expenses,
so somebody would have to pay for those services,
whether it's done through a service fee or otherwise.
It would be something to be negotiated.
BY MR. McGOWAN:
Q On Page 6 of this document, at the end of the
full paragraph on the page, the document said -- says,
"It is also important to note that because CCC acts as
an intermediary as the trading floor of the market, as
it were, the ECCS program also does not take a position
on issues of fair use, as is true of ECCS's other
licensing programs as well. Instead, like ECCS's other
programs, ECCS serves to license that which is not fair
use.
Do you see that?

25 (Pages 97 to 100)

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A I do.
Q Is that CCC's policy at the time you were
there?
A That's my understanding, yes.
Q Is that its current policy, as far as you
know?
A I believe so. But I can't speak for them,
obviously.
Q Why doesn't CCC try to license fair uses?
A The view at the time -- and I don't know that
it has changed -- is that users take a license for
certain uses, and it may be that some of them, if a
case-by-case determination was made, would be a fair
use. I think it's fair to describe the CCC system as an
honor system.
And basically users take licenses in a way of
agreeing to disagreeing on fair use or -- or not having
a case-by-case determination made. But their licenses
cover uses that would not be fair uses. You don't need
a license for a fair use.
Q Let me go back to Paragraph 10, where you
describe -A 10.
Q Of your report, sorry. Exhibit 2.
In the first sentence you say that you

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understand Google has engaged in the copying of millions
of books and display of snippets. Do you also
understand that Google has facilitated search of those
texts?
A I -- I -- I understand it when books are in
the Google Books -- by Google Books, I refer to the
snippet part, right, of -- of what Google does. So I'm
not talking about -- about the whole books. But when
there's a snippet function, that's how you find a
snippet by searching.
Q Do you understand that Google indexes books to
facilitate, sir?
A I don't know how it does its indexing.
Q Do you know that it does indexing?
A I know it uses a certain technology to make
the works searchable, but I do not know what that
technology is.
Q Is there any reason you didn't mention the
fact that Google uses technology to make the works
searchable in your report?
A There was no -- no reason to mention it.
Q In Paragraph 11 of your report you say, "I
believe that if Google's uses are determined not to be
fair uses, the market would intervene and one or more
CMOs would license Google."

Filed 08/26/13 Page 27 of 61

I want to focus on "one or more" in that
phrase.
A Okay.
Q Which would it be?
A I don't know. It could very well be Copyright
Clearance Center, but it could be an organization that
performs the same type of function. I understand that
in the proposed settlement there was a registry that was
to be set up to do this function. My report says that
this is a function that can be performed by a CMO, which
stands for Collective Management Organization, and it
really is not necessary to identify which one.
A -- a CMO needs a data database. It needs
expertise. It needs resources. Currently, CCC has all
three. But it doesn't mean that CCC would be the
organization to perform this function necessarily.
Q You have written in your works about barriers
to entering collective management organizations?
A I have.
Q We still go over each other, but . . .
A I'm sorry.
Q Um-hum. You have written in your works about
barriers entry in collective management; correct?
A That's correct. They are essentially the ones
that I just described.
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Q Can you name another collective management
organization that has the three capabilities you just
testified to, other than the CCC at the moment?
A Do you mean for books or any other types of
content?
Q For books in the United States.
A It is possible that icopyright.com does. I
don't know them enough. But based on my superficial
knowledge of their operations, it looks like they may
have these resources. I just don't know that for a
fact.
Q Did you contact anyone -A No.
Q -- at -A Sorry.
Q Are you confident that if the court were to
rule as you suggest in Paragraph 11, that the CCC itself
could be the collective management organization you
refer to in this paragraph?
A If your question is could they do this, the
answer is yes.
Q Are you confident that anyone else in the
United States could?
A I don't know for a fact that icopyright.com
could.

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Q And you don't know of any others?
A Well, it's -- it could. Obviously it's
something that needs to be defined. So a CMO that's
operating in a different field already has the expertise
and structure in terms of a database and so on. What it
doesn't have is probably the data, and it may need some
additional expertise that is specific to books.
But it is not inconceivable that an
organization that is managing music rights, for example,
would be able to do so this.
Q I am interested in knowing -- so
hypothetically -- if the court rules as you suggest in
Paragraph 11 on Friday. On Monday -A Yeah.
Q -- can you give me the names of the
organizations that have the capability to serve the CMO
function you describe in Paragraph 11 in the
United States for books?
A I think CCC could turn around very quickly and
make this available. It is possible that an
organization like icopyright.com can do so as well.
Q But you don't know?
A In the latter case, I'm not sure.
Q Why do you need a collective management
organization for authors to contract with Google?

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A Collective management organizations are useful
when you have a plurality of a rightsholders on one side
trying to negotiate a license for the use of their
content with one or more users. It's not essential to
have a collective management organization, but it is a
way to make the process more efficient to reduce
transaction costs.
It is unrealistic, in my experience, to expect
individual rightsholders to do this one by one. It is
much easier in terms of processing usage data as well to
have a collective management organization to process
that organization and pay rightsholders accordingly.
Q So let's break this down.
An individual rightsholder would need to
contact CCC in order to derive the contract you describe
in Paragraph 11; correct?
A It may or may not already be something that
CCC can license under its current agreements with
rightsholders. That I would have to look at their
latest rightsholders' agreements. I don't know if they
need additional rights.
Q Let us assume an author who is not currently
in a contract with the CCC, they need to find and
contact the CCC to convey rights; correct?
A In the optimum system, yes.

Filed 08/26/13 Page 28 of 61

Q Have you attempted to measure the relative
difficulty of finding the Copyright Clearance Center in
Danvers, Massachusetts and finding Google?
A I can speak from experience here that we
received payments at CCC when I was there for authors;
in other words, authors that were not signed up. So in
those cases CCC will contact these authors and in almost
every case, an agreement will be signed. So it's CCC's
job at that point to locate the rightholder in question.
So that is very typical of not just books, but
in music as well. If there's a song that is broadcast
and ASCAP or BMI don't have that songwriter because it's
a self-published song, for example, they will locate the
person and try to get them to join.
So it is fairly easy for authors at that
point. All they have to do is respond to the request
that they receive. And CCC has an extensive database of
authors and publishers.
Q So I'd ask you to listen to my question.
Have you attempted to measure the relative
difficulty of an author finding the CCC as compared to
an author finding Google?
A I have not measured the difficulty.
Q Have you undertaken any analysis of that
question whatsoever?

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A Yes. I -- in determining that there was a
reasonable market for a collective management system to
operate in this area, I took into account that authors
would have to be contacted or would have to opt-in in
some way, shape, or form. I took into account that the
fact that the Authors Guild already has a database, that
CCC already has the database, and foreign RROs that have
contracts -- contracts with CCC or, in some cases, with
U.S. author organizations have a data, it would not be
tremendously complicated to get a lot of authors into
the system who are not in currently to participate.
Q Now, my question was comparative. Do you
recall that?
A And I answered that I did not measure
comparatively whether typing google.com or copyright.com
is more or less complicated.
Q Did you do any comparative analysis of that
question whatsoever?
A I think by "comparative" you're trying to ask
me to quantify something. I'm giving you a sense that
authors could join a system, whether it's
icopyright.com, which is a CCC's website, or when they
are contacted by some other organizations. And that
system would be workable.
Q By the phrase "whatsoever," I mean to indicate

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either qualitative or quantitative, but let's break them
down. You performed no comparative quantitative
analysis; correct?
A No, I gave a -- my previous answer was a
qualitative answer.
Q And you prepared no quantitative analysis of
the relative difficulty of contacting the CCC as
compared to Google; correct?
A Quantitative, no.
Q Qualitatively, what steps did you take to
ascertain how difficult it would be for an author to
contact Google?
A I -- as ascertained whether it would be a
significant step for authors to contact a CMO that would
be asked to operate in this field, and I determined that
it would not be an insurmountable problem -- far from
it -- based on experience.
Q My question was drawn to Google. Did you
understand that?
MR. SNYDER: Objection to form.
THE WITNESS: I -- I have not -- as I said,
measured or tried to determine qualitatively how
difficult it is for an author to contact Google.
Q So you don't know?
A It is not irrelevant to the conclusion in my

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report, which is that there is a collective licensing
market here, and authors can participate fairly easily.
Q Have you any opinion in this case about
whether a collective solution through the CCC is the
most efficient means for authors to contract?
A It is an efficient means, I cannot say. I
wonder who can, what is the most way in the abstract.
Q It could be second best; correct?
A It's conceivable.
Q Now, how many people, individual authors, are
in the CCC's author database?
A At this point, I do not know.
Q Did you ever know?
A The exact number, no. But we are certainly
talking about millions of books. So you can extrapolate
from that the number of authors.
Q What calculation would you use to perform the
extrapolation?
A They could provide the number of authors.
They would know. The database people there can give you
a number fairly quickly. That was not what I was in
charge of.
Q Is it relevant to your report that you agree
to which the CCC can contract with authors?
A Yes. A CMO who would operate this kind of

Filed 08/26/13 Page 29 of 61

system would need to contact authors, and the more they
have in their database or already signed up as
participating rightsholders would be material, yes.
Q Then why didn't you ask them?
A Because I know that the collective licensing
market in this area is viable and I know that authors
can be contacted, from experience there. When the
author relations people were trying to contact authors
they were almost always able to find them.
Q Did you personally attempt to contact authors
as part of your responsibilities at the CCC?
A Occasionally.
Q How many times?
A I don't recall exactly.
Q The people you are referring to, did you ever
ask them how many times they had failed to contact an
author?
A All I remember is we had meetings where we
were discussing the number of authors we could not find
and how we could find authors that were hard to locate.
And it was a very small number. But I do not remember,
in percentage or other terms, what the number was.
Q So you don't know how many authors are in the
CCC's database; correct?
A Exactly, no.
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Q You don't know what fraction of total authors
that unknown number represents; correct?
A Total number of book authors?
Q Yes.
A I personally do not know that number, no.
Q And you didn't ask?
A Correct.
Q With respect to the Authors Guild, you
mentioned the Authors Guild has a list of authors?
A I did.
Q What was the significance of that fact to your
report?
A Well, it's one more tool that can be used
to -- if resources are pooled, to contact authors.
There are several others that could be used in addition
to existing databases. You can use the copyright office
as another example. You can -- obviously, if there is
great publicity around a case like this, this generates
interest. Publishers can contact their authors.
There are several ways that authors can be
contacted to participate in this kind of system.
Q Have you ever studied the success rate of any
of those mechanisms in contacting authors?
A Well, I don't know what you mean by "studied."
But as I've answered before, I -- it was my experience

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at CCC that we were successful in a very large number of
cases in contacting authors with relatively little work.
There are databases of authors that exist. There are
trade associations that exist. And I know collectives
who have used other systems like posting names of
authors on the website to whom payments are owed
et cetera. And the success rate tends to be fairly
high.
Q Do you know the success rate of the Copyright
Clearance Center as opposed to the number of times
somebody told you they found someone?
A There were numbers at the time when I worked
there 13 years ago. I do not recall those numbers now.
Q You don't know them at the present day, do
you?
A At the present day, I don't.
Q You just referred to success rate on websites.
What website are you referring to that posts a
percentage of success in its efforts to contact authors?
A Well, either I misspoke or you misunderstood.
What I said is there are CMOs that post names of authors
to which -- to whom, rather -- money is payable, not
CCC, to my knowledge, but I know that some of the audio
visual guilds have done this with a certain degree of
success.

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I do not know the exact degree of success.
What I'm trying to convey is that there are several
tools to locate authors, and that by combining those
tools, people who run CMOs and know what they're doing
are able to locate authors in a very high percentage of
cases.
Q What fraction?
A I do not know the exact number.
Q Did you read the expert report of Glorianna
St. Clair?
A St. Clair. I'm not sure I -- I recall the
report.
Q Are you aware that there are studies that show
the Authors Guild is successful .5 of the time it seeks
out authors?
A Well, the Authors Guild is, at this point, not
something I would consider a CMO. It's part of the
constellation of tools and databases that could be used.
I am not familiar with the contents of their database or
with their success rate. It is just one more tool that
would be available.
Q Do you have any reason -- strike that.
So you're not actually saying, are you, that a
CMO would be necessary for authors to strike agreements
with Google; correct?

Filed 08/26/13 Page 30 of 61

A Necessary -MR. SNYDER: Objection to form.
THE WITNESS: -- is -- necessary is -- again,
we can discuss that term. It would be an efficient way
to do this. I can't think of a more efficient way of
doing this at this point.
Q But not necessary?
A It's -- necessary in the strict sense, no.
Q For example, can you think of anything
prohibiting an author from contacting Google today if
they want to?
A Prohibiting? No.
Q In Paragraph 11 -- strike that.
So let's suppose an author contacts the CCC,
in your hypothetical world. What benefit does that give
the author relative to contacting Google directly?
A I think I can think of number of -- first of
all, it reduces that author's need to spend time on both
getting paid and getting -- knowing for when -- what one
is getting paid. It allows that author possibly to
participate in other licensing programs that the CMO
has. It might actually provide the author advice that
may not be available from Google. I don't know what
advice Google gives authors who contact Google.
A very good example of this is, in the
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performing rights world, there are two major performing
rights organizations, ASCAP and BMI. Both have
nonexclusive agreements with their song writers, yet
there are relatively few songwriters who decide to
license outside of those channels.
That I take as an indication that there must
be some value to them in doing it by those
organizations. And this has been the situation for
decades, since the consent decrease. I would take that
as an indication that authors may see an interest in
dealing with a CMO.
Q Now, in the ASCAP case, one of the things
ASCAP does is go around to bars and skating rinks and
restaurants and try to sign them up to pay royalties for
public performances of sound performances; correct?
A That's my understanding of some of what they
do, yes.
Q Is that your testimony about this hypothetical
bargaining world you were discussing here, is that CCC
is going to go out to each end user individually?
A My testimony is it might be in the author's
interest to be part of a collective system that will
negotiate on behalf of authors with a user, whether it's
Google or somebody else.
Q Well, if it were only Google, it wouldn't be

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like the ASCAP going out to bars and skating rinks and
restaurants, would it?
A That's one of the differences between the two,
that ASCAP does some licensing that would be certainly
impracticable for an individual songwriter.
Q At the end of Paragraph 11, you say, "The
rights involved are also essentially the same."
Do you see that?
A Yes.
Q What do you mean by "essentially"?
A Well, it's essentially the right of
reproduction that comes to mind first. CCC licenses the
reproduction of parts of books and articles, and that is
a large part where the Google Books system does as well.
So that's -- that's what I mean by the rights are
essentially the same.
Q And the reproduction; right?
A Well, that's certainly the first one that
comes to mind, yes.
Q So you're are not talking about uses; you're
talking about the legal Section 106?
A I'm talking about 106, that's correct.
Q In Paragraph 12 on Page 4 you're saying,
"Collective licensing markets have often developed in
response to new technologies and will continue to

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develop for digital uses of books unless widespread
copying of entire books is permitted as a fair use;
thus, discouraging the development of such collective
licenses."
Do you see that?
A I do.
Q This is a causal claim, as I understand it.
My question is what does the "unless" mean? Is this a
statement that markets will continue to develop unless
no permission is required?
A Yes. If -- if widespread copying is permitted
as a fair use, and there is no right to license, and
therefore, the market for licensing of those uses would
either fail to develop or develop in a much, much
smaller way.
Q Why would it develop -- strike that.
Have you ever seen a license that pays
royalties to an author of a licensee indexing a book?
A Indexing specifically, no.
Q Are you aware that there's testimony from the
University of Michigan in this case that it would not
pay the author for the right to index a book?
A I don't recall seeing that testimony.
Q Did you see the deposition of Mr. Courant?
A No. The depositions I saw were Harris, Greco

Filed 08/26/13 Page 31 of 61

& Chevalier. They were rough transcripts by the way.
Q Aikan?
A Aikan I saw -- yes, I did see parts of the
Aikan transcript. As I think -- I believe I said
earlier, it was very long, and I only had time to scan a
very small part of it.
Q Fair enough. Insofar as you know, has CCC
ever obtained a licensee who paid an author the right to
index a book?
A Specifically to make index, I don't think so.
Q To make a mark record?
A I don't know.
Q So when you say, "continue to develop," you're
not referring to a market print of right to index a
book; correct?
A When I -- I mentioned digital uses, I mean
access and possibly a reuse of books or parts of books.
Q But not indexing?
A I am not aware that there is a licensing
market specifically for indexing. There may be, as part
of other licensing arrangements. I haven not seen it
myself.
Q In Paragraph 14, you say, "allowing the market
or congress to develop a collective licensing system."
Do you see that?
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A Yes, I do.
Q Is it part of your opinion in this matter -is part of your opinion in this matter about what
congress is likely to do?
A Well, at least indirectly, so congress can do
obviously one thing, which is adopt legislation, like it
has done for the online availability of music by digital
audio transmissions, in which case there's a specific
section of the statute; namely, 114, which deals with
that process.
Congress can also act in a nonlegislative way.
I think it's fair to say that CCC was created because
there were signals at the time. This was the late '70s
from congress that an organization of that type should
exist. And so it could be that kind of impetus from
congress, so in other words, nonlegislative in nature.
Q Congress -- what does that opinion have to do
with this case, meaning congress can do what congress
chooses, can't it?
A Yes. I'm basing my report here, the words "or
congress" were there -- were put there because it is
possible that if the market doesn't, for whatever
reason, react quickly enough or achieve the solution
that congress considers undesirable, that they would do
here what they've done in the sound exchange case, which

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is the CMO that licenses sound recorded audio
transmissions.
And that CMO is specifically designated to do
so under the statute via the copyright office.
Q But you're not opining what terms that CMO
would be authorized to offer; correct?
A Specifically what congress impose, no, I
don't -- I'm not opining on exactly what congress would
do.
Q It would be difficult?
A Possibly.
Q In the second sentence in Paragraph 14, you
say -- I'm sorry. The third sentence -- oh, I'm sorry.
Second sentence, "Instead we compensate those who
created and published the content and whose ability to
earn a living often depends on being able to monetize
online uses."
Do you see that?
A I do.
Q Have you undertaken a study of what fraction
of publishers' ability to earn a living, or what
fraction of authors' ability to earn a living depends on
their ability to monetize online use?
A While I have not quantified that, it is
certainly my understanding that their online uses are

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increasingly important. And if you carve those out as
noncompensatable [sic] because they're fair use, then
the ability to monetize online content diminishes.
Q And monetize could include the business model
you described earlier, which is make some available for
free and then charge for the rest?
A Well, that would be a business model if it's
not a fair use that rightsholders could decide that they
want. If it's a fair use, then rightsholders lose their
ability to make those decisions.
Q When you say "it," what is "it"?
A If the use is that the online uses are fair,
what -- whatever percentages of those uses are
determined to be fair, that the ability of rightsholders
to make decision on licensing is obviously nonexistent.
Q All right. Monetization does not exclude the
concept of show the consumer a little bit content,
familiarize them, and then charge them for the full
content, if they choose?
A I -- that would not it be excluded.
Q In the next sentence you say, "The actual
scope of the uses could be taken in account in
determining appropriate rates."
Do you see that?
A Yes.

Filed 08/26/13 Page 32 of 61

Q What does that mean?
A Well, I'm referring here to the process of
rate determination. So rate determination in a
collective context can be done in a number of ways. It
can be negotiated as part of a contract between a user
and a collective representing rightsholders.
It can be imposed by a court, as in the ASCAP
and BMI case, where the consent to create provide for a
rate court to be established.
It can be established by the copyright royalty
judges, in -- as in the sound exchange case. But in all
of those cases, what is necessarily taken into account,
in my opinion, is the actual scope of uses of material.
Q Let's focus on negotiated agreements over the
use of book text.
A Okay.
Q In that context, what does the sentence mean?
A Well, for example, if there was a solution
such as the -- the one suggested in the proposed
settlement, I would assume that it would be negotiation
as to which uses are licensed and for what amount.
Therefore, the actual uses that are licensed would be
determined in that agreement.
Q Let me -- so some uses in that agreement might
be for compensation, and other uses might be without
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compensation to an author?
A It's a negotiation. So it is up to the
parties to decide at that point how the payment is to be
made and what is the proper basis for that payment.
Q But it could be that some uses would be
uncompensated to authors and other uses would be;
correct?
A It's possible.
MR. McGOWAN: Let me mark as Exhibit 8 your
keynote.
(Exhibit 8 was marked for identification.)
BY MR. McGOWAN:
Q This is -- no, strike that.
Do you recognize this document, Professor
Gervais?
A I do.
Q Is this an article you wrote?
A It's the text of a lecture I gave at Columbia
Law School, which I updated for publication. So I
wouldn't call it an article, but it's the text of a
lecture.
Q And this actually is one of the documents
referenced in your report as a document you reviewed in
connection with your report?
A I did reread this article before filing my

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report; correct.
Q The link you gave us was broken, but I tracked
it down.
A I do apologize. The link was incomplete. We
sent you, I believe, a -Q Yes.
A -- complete link.
Q I appreciate that. Thank you.
Can you go to Page 445, please, in Subpart G.
A Yes.
Q In the second sentence of Subpart G, you say,
"The United States has a fair use rule that is flexible,
adaptable, and dynamic."
Do you see that?
A I do.
Q Is that a view you hold?
A I do.
Q What do you mean by "flexible"?
A Flexible means that unlike certain national
laws that impose very specific conditions on exceptions,
fair use rule is really a rule that is applied by -- by
courts. And so, to that extent, it is flexible because
it -- its application does not require an amendment of
the statute.
Q Adaptable?

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A More or less the same idea, that it adapts
over time to changes and technology and uses, or at
least it can.
Q Dynamic?
A Again, very similar ideas.
Q In the next paragraph, the first sentence
says, "Fair use does suffer from the fact that it is
fundamentally designed to be applied case by case by
courts."
Do you see that?
A I do.
Q What do you mean by, "case by case by courts"?
A Well, it doesn't mean literally each and every
case because you can rely on precedent to determine that
certain uses are fair, at least to a certain extent. To
have 100 percent certainty that a use is fair requires a
court determination.
Q On Page -- and the determination might vary,
depending on the facts of a particular case?
A I think every case depends on particular
facts.
Q It might vary depending on the character of a
particular work?
MR. SNYDER: Objection to form.
THE WITNESS: I mean, that's -- I believe

Filed 08/26/13 Page 33 of 61

that's -- that the type of use might be relevant, yes,
under Section 107. But I did not review Section 107 or
various criteria when preparing my report.
BY MR. McGOWAN:
Q Sure. Your report describes you as an expert
in intellectual property law.
MR. SNYDER: Objection.
THE WITNESS: Yes. There's areas of
intellectual property law that I know very well, but I
did not do a fair use analysis in this case.
BY MR. McGOWAN:
Q That's fine. I'm just asking about the
statement in your keynote lecture?
A Okay.
Q The case-by-case facts that might vary might
include the type of work; right?
A Yeah. Radically different types of works
might definitely get a court to view the outcome
differently.
Q You previously drew a distinction between
fiction and nonfiction; correct?
A Yes.
Q That might matter?
MR. SNYDER: Objection.
THE WITNESS: To be honest, I'd have to reread
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the case law. Whether courts -- how much importance
courts have attached to -- to whether work is fiction or
nonfiction is not something I recall exactly.
BY MR. McGOWAN:
Q It would be a fact that might be considered in
a particular case?
A Might be, yes.
Q On Page 446, you say, "In a license with or
through a CMO, rightsholders and users could agree to
disagree on the exact scope of fair use, yet include
some of the marginal uses in the scope of the license
and reflect that fact in the price."
Do you see that?
A I do.
Q What do you mean by "marginal"?
A Well, uses on -- that are at the margin, so
there's a core of uses that are -- that are infringing,
that are uses that are fair at some point beyond that
core. And then there would typically be some
disagreement as to where to draw the line. Let's call
that the margin. And the point I'm making here is in
the CMO contract, you could decide that if uses fall
within that margin, they may be fair use, they may not
be fair use, but they will be covered by the license in
case they're not. And that can be reflected in the

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price, for example, those uses could be at a different
price.
Q It could be zero?
A Anything's possible. It's a negotiation.
Q What's the core of fair use that you just
referred to?
A I did not refer to the core -Q I said the -A -- uses that are not fair.
Q What are those. My apologies. What are
those?
A Well, there's an unlimited list of uses
almost, that I've -- you know, for example, you -- to
take the most obvious example, you go and buy a book and
you make full copies of the whole book and you start
selling those. To me, that is the right in the middle
of core uses that are definitely not fair. But beyond
that, as I said, I did not make an analysis -Q Um-hum.
A -- in this case exactly where the line is for
fair uses or not.
Q What are the core fair uses?
A That is a much harder question to answer.
Fair use is a concept that is a little harder to -- to
pin down. So I did not review what uses in the case of

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online books might be fair or not.
Q Well, in your -- one of the previous exhibits
we saw that you used a quotation about three sentences
long. Is that core fair use?
A I think the quotation in the context of
creating another work might be fair use. It depends on
the size of the quote. It depends on, for example, if
you were to quote a poem in its entirety, you know,
somebody might say that's not a fair use.
Somebody -- if you quote 300 words from Gerald
Ford's memoirs, that may not be a fair use. It's really
contextual, so I cannot answer your question in the
abstract.
Q Did you think that the quotation you used was
fair?
A I did in that case.
Q On Page 447 of your keynote address, in the
first full paragraph you say, "I hasten to add that I am
not suggesting a faired-use world."
Do you see that?
A Yes. I took that term from Tom Bell's article
at Footnote 128.
Q What do you understand the phrase, "faired
use," to refer to?
A I -- I think that there's no question that

Filed 08/26/13 Page 34 of 61

fair use must remain. They are essential, they are part
of the system, 107 is important, which means that not
every use of content is something that needs to be
licensed.
But beyond that, I cannot be specific as to
which uses in this case would or would not be fair use.
That is not what my opinion is about.
Q Sure, I understand. Some licenses without
permission must exist because you've got Section 107,
and that necessarily follows; right?
A Well, 107 says what it is says, and it's for a
court to determine how it applies in this case. I am
not giving an opinion on that.
Q Sure. My question was actually what fared use
refers to?
A Well, it really refers to the use in the
context of Tom Bell's article where he wrote this
article, as you can see, fairly early on in the context
of discussions in the late 1990s where the idea was that
every piece of content would circulate online with a
meter that would then be basically crossing what people
were referring to toll booths, very much using those
kind of highway metaphors. And basically, that each
time you would use a work for any purpose, you would
have a small payment made.
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I don't think that's an optimal solution. I
think in some cases aggregate payment is better. So
that, I think, was Tom Bell's point, and to that extent,
I agree with him.
Q In the next sentence you say, "Free uses must
remain, both because that is what some authors want and
because fair uses are essential."
Do you see that?
A I do.
Q Why must some free uses -- well, strike that.
What authors are you referring to?
A Not one in particular. I say some authors.
I -- I know some authors might be very happy with free
uses of their work, and if that's a determine -- the
determination that an author makes, that his or her work
should be available for free, that is that author's
right.
Q Well, you don't need fair use to come into
play for an author to make that determination, do you?
A You don't need fair use for that.
Q Is free use, in this sentence, connected to
fair use?
A Fair use is one form of free use.
Q Why are fair uses essential?
A I believe they're really part of the system.

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To take a simple example, if you are going to ask
somebody for a license to make fun of them in a parody,
it's possible the license will be refused. Yet, I think
that society gains something by letting parodies exist.
So that's a fair use that is essential as a societal
matter. And that I would favor, and that should be
free.
Q Any others?
A I really cannot possibly give you a list of
everything that could or should be a fair use.
Q And "essential" here means because there are
social benefits to the use?
A In the case of parody, yes.
Q In other cases?
A Possibly.
Q Uses would hardly be essential if they were
not beneficial; would you agree?
A Would you repeat the question.
Q Uses would hardly be essential if they were
not beneficial?
MR. SNYDER: Objection.
THE WITNESS: Beneficial to whom, in what
context? I mean, I assume if somebody's making a use is
because they're getting some benefit from it, but it
doesn't mean it's fair use because somebody's getting a

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benefit from it.
BY MR. McGOWAN:
Q And we'll talk about your writing on that in a
little bit. Essential to whom, since you raised the
question?
A Systemically, essential.
Q Essential to society?
A In the case of parody, for example, yes.
Q In other cases?
A Possibly.
Q Do you know?
A I have -- I have not given it any thought. I
have not analyzed that for the report. It's very
possible that other fair uses are essential, but I did
not compile or prepare a list, and I would have to give
it some thought.
Q Did you analyze parody for the report?
A No. That's really, the one example that comes
to mind very quickly. Others I would have to think
about.
Q Is quotations in law review articles?
THE REPORTER: "Quotations . . ."?
MR. McGOWAN: In law review articles.
THE WITNESS: Again, I -- I think I answered
quotations just a few minutes ago. To the extent to

Filed 08/26/13 Page 35 of 61

which they are fair uses is contextual.
BY MR. McGOWAN:
Q You say in the end of the sentence, "Fair use
should be partially factored into rates for mass access
to commercial content. This would not prevent an
acknowledgment that certain uses remain outside the
scope of those contractual umbrellas, and new test cases
will be needed. A license covering some fair uses need
not be painted, as some uses can be licensed, but zero
rated."
Do you see that?
A I do.
Q Zero rated means they don't bear royalty to a
rightsholder?
A So the footnote refers to a very specific
case, where there was significant disagreement between
parties in a case in Canada about what uses should be
covered by the license and the copyright board, which is
essentially the equivalent of copyright royalty judges
under Section 114 -THE REPORTER: Slow down a little bit, please.
THE WITNESS: Sorry. The equivalent of
copyright royalty judges under the U.S. statute
determined that some limited uses of -- covered by the
license should indeed be covered by the license, but
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zero rate, in other words, not paid for.
And I believe the case is before the Supreme
Court in that country, but I would have to check that.
BY MR. McGOWAN:
Q So the answer zero rated means not royalty
bearing to the author?
A It means no royalty paid because it's a
marginal case that, based on the determination of the
board, should be included in the license, but not paid
for, yes.
Q And in the context you're discussing your
report, that might be a conclusion the parties would
bargain to?
A In a voluntary system, yes.
Q The next paragraph you say, "There are
legitimate questions concerning access and culture. And
this debate should not detract from a duty to consider
their substantive merit," and you cite Jessica Litman.
A Um-hum.
Q What are those questions?
A Well, there's a long list, some of which are
listed by Professor Litman in Footnote 130. In simple
terms, I think there are only two essential players in
the copyright, the author and the user. And everything
else is essentially contingent.

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There are intermediaries between the two, but
they come and go and they change. But the user or
reader is essential because the authors need people to
read or watch or listen to what they do. And what I say
here is we need to be mindful of both sides.
I'm also, in that sentence, thinking of some
international issues. I've worked on access to books in
developing countries by certain users. For example, I
think all of these are relevant parts of the debate, and
my paragraph here is really to say there are legitimate
concerns that need to be addressed concerning access and
culture.
Q And access is by readers in this context?
A It would be by users whether they are readers,
reusers, or listeners, viewers.
Q In Paragraph 15 -A We're back on the report?
Q Back on the report. I don't think the lecture
was paragraph numbered.
A No, that's right. I'm just checking.
Q Back to the report.
You say that "Collective management
organizations license old and new works," at the bottom
of Page 4, "from Philip Glass to the latest hip hop hit,
CMO's typically pay authors and other rightsholders

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based on actual usage."
Do you see that?
A I do.
Q What usage are you referring to?
A If can I go back to the plumbing metaphor I
used earlier, where the CMO has rights coming in that
are processed and then paid. What happens inside the
CMO is they match usage data, which will be usage data
provided by users against their database of names and
titles, and that's how they will determine who gets paid
what.
This depends on the type of work and type of
CMO concern. But that's why I use the word "typically."
Most CMOs -- and I would be temped to say almost all
CMOs -- proceed on that basis, matching usage data to -to their database of names and rights.
Q So usage here would refer to viewing portions
of text?
A Whatever usage has been licensed would be the
actual usage that would be based for distribution.
Q Let me draw your attention to Paragraph 17.
You say, "It is my opinion that a similar type of
collective management system most likely run requiring
that rightsholders opt their books in to participate in
collective management would develop here if some or all

Filed 08/26/13 Page 36 of 61

of Google's uses are found to be fair."
A Not to.
MR. SNYDER: Objection.
BY MR. McGOWAN:
Q Not to be fair. "Most likely." Do you mean
to say that there is, in your view, a possibility for
something other than an opt-in form of management?
A Well, it's -- Paragraph 17 follows 16, where I
refer to the proposed settlement and the registry. And
I have actually been critical in another article that
you may bring out later of the opt-out function,
especially vis-a-vis foreign authors and publishers.
I believe that an opt-in is a better way to
operate a collective management organization in any -in any event, because it creates buy-in, it allows the
collective to get the authors and publishers to
understand from the get-go exactly what's going on.
So I would favor an opt-in system. But
obviously, there was a discussion of something that
looked like an opt-out before.
Q So when you say, "most likely," you're
actually referring back up to 16?
A Well, that's the context. Obviously, I was
saying in 17 that if a system, given that there was some
negative reaction, including as I read it, at least by
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the judge, to the opt-out system, I would think that an
opt-in is more likely.
Q Is it the basis of your report that something
like the registry system might result in this case, even
if the court holds as you hypothesize?
A Would you rephrase or repeat the question.
Q Yeah. I'm just -- in your report you say if
Google uses are found not to be fair, then certain
things may be possible.
A Correct.
Q Is a system, such as you describe in
Paragraph 16, of the things that you believe would still
be possible?
MR. SNYDER: Objection to form.
THE WITNESS: Well, there's nothing that
prevents the type of solution like what was in the -- in
the proposed settlement to be renegotiated with
different terms, taking account in particular of the
court's decision on the matter.
But can a specific system be set up to license
Google's uses or some of them? The answer is, yes.
BY MR. McGOWAN:
Q Did you talk to anyone at Google about that?
A No.
Q Have you expressed an opinion anywhere on what

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Google would be willing to do?
A Not since I was engaged to prepare this
report. It's a matter I -- I discussed when the
settlement was being discussed. But not since I was
engaged to -- retained to do this report.
Q Which wasn't my question.
When were you engaged -- when were you
retained?
A Very early in February, 3rd, maybe.
Q The month before that?
A Not as -- as I recall, it was when the
settlement was being discussed and then adjudicated
upon. So I'd have go back in the calendar, but it
strikes me as significantly earlier than January of this
year.
Q You are aware that you expressed such an
opinion?
MR. SNYDER: Objection to form.
THE WITNESS: Expressed what?
BY MR. McGOWAN:
Q You are aware that you have expressed such an
opinion?
MR. SNYDER: Objection.
THE WITNESS: That I have expressed such an
opinion?

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BY MR. McGOWAN:
Q On what Google would be willing to do in an
opt-in world?
MR. SNYDER: Objection.
THE WITNESS: I'm not sure I follow your
question.
BY MR. McGOWAN:
Q Well, let me ask, in Paragraph 17 is it your
testimony that Google, in the event that its use is
found not to be fair -A Yes.
Q -- is going to be a licensor?
A Licensee.
Q Sorry, licensee? Is that your testimony?
A My testimony is one of the things I considered
was that, as Paragraph 10 says, there is a feasibility
part of my report and then there's -- which I -- I think
we've discussed. We can go back to it.
I did consider the fact that there was a draft
settlement in which Google seemed to agree to collective
licensing of some of its uses. I'm also aware that
Google owns a collective management organization, though
in a different field. So I assume that Google would not
be completely allergic to the idea of collective
management.

Filed 08/26/13 Page 37 of 61

Q What organization are you referring to?
A I believe it's called the Right Flow.
Q When did you become aware of that
organization?
A I've been aware of the organization for quite
awhile. I was not aware that it had been acquired by
Google until fairly recently.
Q In Paragraph 17 you say here that "A
collective management system, most likely an opt-in
system, would develop if some or all of Google's uses
are found not to be fair."
Is it possible, in your view, that some would
be fair and others would not be?
A I am not opining on which uses may or may not
be fair. I have deliberately not expressed an opinion
on that in this report.
Q Then why did you say some or all?
A Because I don't know.
MR. SNYDER: I couldn't hear you.
BY MR. McGOWAN:
Q Why did you say some or all?
A It is conceivable that some are. I don't
know.
Q And which are the uses that you're referring
to here?
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A All of the uses that I see in the -- in the -in the reproduction and make available of snippets. And
all that -- I don't know if some of that is or isn't a
fair use. I have not done that analysis.
MR. McGOWAN: Request for a break. It has
been an hour, so why don't we take a short break.
VIDEOGRAPHER: Off the record at 1:57.
(Recess taken.)
VIDEOGRAPHER: On the record at 2:06.
MR. McGOWAN: Professor Gervais, I'm going to
mark as Exhibit 9 -(Exhibit 9 was marked for identification.)
MR. McGOWAN: -- a paper entitled, "A [sic]
tangled Web of UGC."
BY MR. McGOWAN:
Q Do you recognize this paper.
A I do.
Q Did you write it?
A I did.
Q I want to direct your attention to Page 859.
A 859, yes.
Q Under Section 3, "Users Copied Content," in
the second full paragraph, you say, "The ratio issue
might become relevant if only a short excerpt is used.
This issue is not limited to the online environment."

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Do you see that?
A I do.
Q And then in Note 78, you state, "The ratio is
the amount used measured against the totality of the
work from which it is taken."
Do you see that?
A Yes.
Q What is the significance of the ratio issue?
A In what context?
Q In the context you are discussing in this
paper?
A I am discussing this paper -- it proposes a
taxonomy of the types of content that one finds online
that is referred to user-generated content. In my
proposed taxonomy there are three types of content:
User authored, user derived, and user copied content.
My point is that user copied content is
typically infringing, but I make allowance here for the
possibility that some forms of copying of content would
not be. And in one of those cases it would be because
of a very small portion, qualitatively and
quantitatively presumably, of something has been made
available.
And as I say specifically here, the issue's
not limited to the underlying environment, Footnote 78

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refers to articles in cases that have help along those
lines.
Q And one of those cases is Bill Graham Archives
versus Dorling Kindersley.
Do you see that?
A Yes.
Q And your description of that case in the
parentheticals says, "Finding the copying the entirety
of work is sometimes necessary to make the fair use."
Do you see that?
A Yes.
Q Is that your understanding of the holding of
Dorling Kindersley?
A Well, I believe there's a quote from the case
here in the brackets, but I -- I've not checked this
article recently. I believe is a quote from the case.
It's obviously a fairly extreme example of copying the
entirety of work, but as I said earlier, fair use is
flexible and adaptable, and that would be an example of
that.
Q Is that your understanding of that portion of
the holding of Dorling Kindersley?
A I do not recall the specifics of the case. I
would have to reread it.
Q Did you have an understanding at the time you

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described it?
A Yes. I would have at the time, but as I said,
I don't -- I haven't reread that case in quite awhile.
Q On Page 861, Section A, 3A, the third -second -- third full paragraph, second under Section A,
you say, "This doctrine may have been extended by the
Google defense."
A Um-hum.
Q Do you see that?
A Yes.
Q What is the Google defense?
A I am referring to -- it's Footnote 87, makes
clear the Perfect 10, Inc., the Google case from 2006.
Q And what is the Google defense?
A It's explained in the following sentence. The
court found that the 9th Circuit specifically felt that
thumbnails were a fair use. And I called that the
Google defense, in part because I believe this case is
an outlier, and I'm not sure other circuits would hold
the same thing.
Obviously, I can't prove that, but I call it
the Google defense because I think the court was, in
part, taking into account the fact that Google was
involved as a significant player in the online world.
Q And what was done with the thumbnails? How
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did they relate to the case?
A I'd have to reread the case. I remember there
were thumbnails of so-called adult images that were made
available in, obviously, lower resolution than the
higher resolution images that one could purchase in
Perfect Ten site. But beyond that, I would have to
reread the case.
Q Do you recall if they were used for purposes
of search?
A I don't.
Q On Page 863 you say in the second sentence in
the first full Paragraph, "Dissemination may also be
fair use on other grounds. One may argue that there are
public policy imperatives that will allow thumbnail
access and, more generally, favor broad access to
material on search engines such as Google."
Do you see that?
A Yes.
Q Do you agree that that is an argument that
could be made?
A I -- I point to Footnote 102, to the 9th
Circuit's holding again, in the parallel case and -- I
mean, the case it speaks for itself. I -- I say one may
argue because the 9th Circuit accepted that argument. I
again believe that that case is an outlier in fair use

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juris prudence.
Q We'll come to that in a moment.
"Public policy imperatives." What are the
public policy imperatives?
A Well, if you read the sentence, it does not
refer to thumbnail access. I say there that the public
policy imperatives deal with broad access to material.
I can think of examples. The first that comes
to mind was -- for some reason, is the copyrightholder
tried to prevent the use of the images of Princess Diana
leaving her hotel the day she died in a car accident in
Paris. And a court -- that was a British court -- held
there was a public policy imperative to make that image
available, in spite of copyright law.
I thought that was an interesting example of a
rare public policy imperative that might trump
copyright. These, again, are fairly rare cases, which
is why my sentence begins with a very careful, "One may
argue."
Q The Princess Diana case that you mentioned,
did that involve a search engine?
A I don't recall. It's an old case.
Q You specifically mentioned search engine, such
as Google?
A Yes.

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Q What are the public policy imperatives that
relate to search engines such as Google?
A Well, you would want people to be able to find
an image such as the one I just described, and they
would typically use a search engine to find that image.
Q Does this relate to the statements you made in
the papers we examined previously that it is important
for people to be able to find information on the
Internet?
A Yes. Indirectly, at least.
Q On Page 865 in Footnote 111, you say,
"So-called here because it is the making available of
content in a different form through a search engine that
the court considered transformative."
Do you see that?
A Yes.
Q Is that your understanding of the Perfect Ten
court's ruling?
A What is the question? I'm sorry.
Q Your first sentence states -A Yes.
Q -- "It is so called here because it is making
available content in a different form through a search
engine that the court considered transformative."
My question is, does that state your

Filed 08/26/13 Page 39 of 61

understanding of the Perfect Ten court's ruling?
MR. SNYDER: Objection to form.
THE WITNESS: I think the case speaks for
itself. As I said, I think that case is an outlier. I
don't think the use, as I recall it, was transformative
in the way I would be tempted to describe it. But I
take the 9th Circuit's word for what it's worth.
BY MR. McGOWAN:
Q This is your description of the case, however.
It is not a quotation; correct?
A There are no quotation marks in 111. That's
all I can say.
Q Is it your description?
A I don't know to what extent the language
follows the words of the case, but it's not a quotation
from the case.
Q Did you have a research assistant write it?
A I usually work with research assistants.
Whether I did for that particular paper -- that was four
years ago -- I'm not sure. It's likely, but I'm not
sure.
Q Did you have a research assistant write this
sentence for you?
A That is very unlikely.
Q This is your prose?
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A Yeah. I think the use of the words, "the
court considered transformative" are what I would
underline here.
Q Your next sentence -- does that mean, yes, it
is your prose?
A It is likely to be. Certainly it's an article
I've written, so I take responsibility for Footnote 111.
Q Your next sentence says, "If this type of
transformation is indeed a fair use, then presumably it
would apply to many categories of content that Google
users may locate on the Internet, using search engines
such as Google."
A Yes.
Q Do you agree with that statement?
A I use quotations around transformation to
signal this agreement with the fact that it is, but if,
indeed, the 9th Circuit's view was often frank, it might
apply to other types of uses.
Q In your article you said, "would apply";
correct?
A The word "presumably" you seem to have
forgotten. Presumably it would apply. I am not saying
just "it would apply."
Q Since undertaking this assignment, have you
come across any information that causes you to alter

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that presumption?
A The presumption that if we have -- that
reading of those 9th Circuit opinions, there would be
other uses that would be potentially covered, that
opinion has not changed.
Q On Page 863 -- I apologize. Let me ask you to
go back one page.
In the Footnote 100, you have the quotation
from Judge Leval's article, "Toward a Fair Use
Standard."
Do you see that?
A Yes.
Q Did you seek permission from the Harvard Law
Review for that excerpt?
A I don't believe I did.
Q Pay royalty?
A I don't believe I did.
Q Are you familiar with Judge Leval's 1990
article?
A I would have reread it at the time.
Q Are you aware that it has been cited by the
Supreme Court and circuit courts in many cases?
A I'm aware that it has been cited. I did not
count the cases in which it has been cited, but it's
considered a fairly well-known piece, I believe.

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Q In this excerpt that you quote, Judge Lovoll
says, "The use" -- in the third full paragraph, "The use
must be productive and must employ the quoted matter in
a different manner or for a different purpose from the
original."
Do you see that?
A Um-hum.
Q Why did you quote that language?
A I would -- I'd have to go back four years and
think of how the creative process was for this article.
I think it's a relevant quote in context. Why I chose
that exact part, I would have to go back to the original
article and see why I picked those four paragraphs. I
don't -- I cannot tell you beyond that.
Q Okay. In the last paragraph, Judge Lovoll
states, "Transformative uses may include criticizing the
quoted work, exposing the character of the original
author," and then he concludes his passage by saying,
"They also may include parody, symbolism, aesthetic
declarations, and innumerable other uses."
Do you see that.
A I do.
Q Do you agree with that?
A I -- I would probably have a quibble with
"innumerable," unless it means that it's hard to put an

Filed 08/26/13 Page 40 of 61

exact number. But parody, I already said I agreed. The
other two, not necessarily. Symbolism and aesthetic
declarations is something I would consider contextual.
But you asked me earlier for a list of fair
uses. I cannot provide one, so to that extent it may
well be that these innumerable. And to that extent, the
word is correct.
Q When you say symbolism may be contextual, you
mean -A I don't know what Judge Lovoll meant.
Q Do you know why you quoted him?
A At the time, those four paragraphs looked like
they belonged there.
Q What do you mean when you say symbolism is
contextual? Do you mean whether it's transformed or
depends on its context?
MR. SNYDER: Objection to form.
THE WITNESS: It depends what symbolism means
in that context. It could be defined in a number of
ways. I think it includes certain forms of art uses and
artistic uses and others that really, I cannot say in
any abstract, say they're always transformative or not.
I certainly agree with the parody part.
BY MR. McGOWAN:
Q Whether they are transformative will depend on

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the facts?
MR. SNYDER: Objection to form.
THE WITNESS: Yes.
BY MR. McGOWAN:
Q And that's consistent with what you said
earlier about case by case?
A Case by case. Subject to the fact that, in
some cases, we have precedent that acts as a useful
guide.
Q On Page 867 at the top of the page -- and
this, I believe, is in a section in which you refer to
user derived content?
A Right.
Q You say at the beginning of this page, "The
availability of a technological licensing solution
should not, in itself, be sufficient evidence that a
market exists. It is sign that a market is possible."
Do you see that?
A Yes.
Q What did you mean by that?
A Well, the -- this is an explanation of my
reading of Texaco, which, in the simplest term, is that
one of the relevant factors in the fair use analysis is
whether a licensing transaction is reasonably possible.
So that's what the words, "in itself," are meant to

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convey. It's not because the rightsholder says, I'm
licensing parody, that parody is not a fair use. It's
the fact that there's a licensing market is a sign that
it may not be a fair use.
I believe that's consistent with Texaco, but I
would have to reread the case. I did not do so to
prepare this opinion -Q So let me -A -- or this report, rather.
Q Let's talk about your parody example for a
minute. Can you explain what you mean by your comment,
just about parody. If I understood you correctly, you
said the fact that somebody stands up and says "I'm
willing to license parody," has significance. I did not
understand the significance.
A What the sentence, the words, "in itself,"
convey is that it's not because a rightsholder, for
example, says, "I'm making my work available for parody
purposes by others." That would necessarily negate fair
use. I don't consider that a reasonable licensing
market.
A reasonable licensing market is for uses that
are not fair uses, and so what I'm saying is if there is
such a licensing market, or if one is clearly possible,
that is relevant in a fair use analysis.

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Q So "clearly possible," by that you don't mean
technically possible?
A That would be part of it.
Q Here you say, "The availability of a
technological licensing solution should not, in itself,
be sufficient evidence that a market exists."
A Um-hum.
Q So it's not the technical feasibility that
matters; correct?
A It's one of the things that matters.
Q Standing alone, that's insufficient?
A It's not because the license is
technologically available that the use is necessarily
not a fair use. That's one of the factors that would be
taken into account, I believe, based on my reading of -or my recollection, rather, of Texaco.
Q Is that your understanding generally?
A That strikes me as a reasonable proposition.
Q And it's not, standing alone, the fact that a
rightsholder would be willing to license; correct?
A In itself, is not sufficient evidence. You
need to look at existing market practices and other
factors that are discussed in my report.
Q So let's add the two together. If it's
technically possible that a rightsholder is willing to

Filed 08/26/13 Page 41 of 61

license a parody, those two factors, even put together,
would not mean that the parodic use was unfair?
A In the case of parody, that's correct.
Q Now, when you talk about the factors that have
to be considered for a licensing -- make sure I
understand you correctly. What factors have to be
considered before you would conclude that a reasonable
licensing market does exist?
A I would consider the existence of similar
licensing markets or systems, and I would consider
whether those current licensing systems can be adapted
or can be parallelled to license the uses in question.
And I believe in the case of the online parts of books,
that is the case.
Q All right. Let's break it down because
"online use" is a broad term. Would
you agree?
A We discussed that earlier what I meant by
that, but yes, it is a broad term.
Q Similar markets.
A Um-hum.
Q Are you aware of any opt-in market in which
authors allow their works to be searched?
A No. I can't think of a system where authors
specifically license that use currently.
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Q You didn't investigate that as part of your
report?
A I did not investigate the search functions
specifically as part of my report.
Q You've read the Chevalier report?
A Correct.
Q You skimmed the Aikan deposition?
A Parts of it.
Q In each of those it is established that
Amazon's Search Inside the Book program is an opt-in
which does not pay royalties to authors.
Did you know that when you wrote your report?
MR. SNYDER: Objection.
THE WITNESS: I knew of Amazon's system. I
did know the amount of payment or absence thereof.
That's a matter that's obviously been negotiated between
the parties.
BY MR. McGOWAN:
Q Is it a premise of your opinion in this case
that Amazon negotiates price with each individual
author?
A It's not a premise. It's the authors agree to
free uses, as I mentioned before. That's their
prerogative as copyrightholder.
Q Is Search Inside the Book on Amazon a fair

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use?
A I have no idea.
Q Then why did you just say "fair uses"? You
said if authors agree to -A I said "free."
(Court reporter interrupted the proceedings
to preserve the record.)
MR. McGOWAN: Sorry. Speak up just a touch.
MR. SNYDER: I heard him.
THE WITNESS: I did say "free." It should be
on the record.
BY MR. McGOWAN:
Q Similar markets. Is Amazon Search Inside the
Book a similar market to Google Books?
A The rights involved are in both cases, the
right -- you certainly have the right to reproduction,
possibly other rights under Section 106.
Once an organization holds the right to -- or
the authority to license those rights, it could license
those uses if they are found to be not fair uses. It's
a very simple thing to do at that point.
Q Are they similar?
A I would say yes. I mean, when you say "they,"
maybe you should be specific, make sure -Q Amazon --

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A -- we're saying the exact same thing.
Q Amazon Search Inside the Book programs and
Google Books?
A Well, there are certainly many parallels. I
have not used Amazon's system more than, maybe, once.
So I'm -- would not qualify similarity there very -- in
a very steadfast, but I'm not sure.
Q Can you do a full text search of a book and
return a display of a portion of text on Amazon and
Search Inside the Book?
A I don't recall.
Q Have you ever done that?
A I've used Amazon search engine -- or Search
Inside, I think, maybe once. I don't recall what the
return was in terms of how much was returned in the
search result.
Q Do you recall that some text was returned?
A Yes.
Q Do you know whether the entire text of the
book can be searched?
A No, I don't.
Q Assume with me that in both Google Books and
Amazon Search Inside the Books, a user can search the
full text of a book and see a display of a portion of
the text of the book.

Filed 08/26/13 Page 42 of 61

A Um-hum.
Q Do you understand?
A You want me to assume that a user can word
search the entire book in both cases?
Q Um-hum.
A Okay.
Q And get a display that is similar in length to
the snippet display that you did testify earlier you
were familiar with?
A The snippet I have used, yes.
Q So with respect to the searchability and the
display, would you consider Amazon Search Inside the
Book to be a similar market, as you were just describing
in the market availability analysis in your paper?
A Well, again -- I -- I -- I have not used the
Amazon system to an extent that I remember how it works.
I assume that they will then try to sell the book or
some other function. Maybe that's why authors agree. I
have not spoken to authors why they use Amazon. I
really can't -- it's -- it's beyond just searching and
what you return. It's what happens after that would
also be relevant.
And so the answer to your question is I'm not
sure that I would call them similar. They certainly
have some parallels, but you've asked me to assume that

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similarity. I -- you know, beyond that, I can't really
say Amazon is the same as Google.
Q It's not something you researched for purposes
of your opinion?
A I have not researched the Amazon system for
purposes of my report.
Q Do you have any basis whatsoever to think that
in the event there was a collective license for Google
Books, the price for search would be anything other than
the zero, as it is in Amazon?
A Again, I don't know why authors, and again how
many authors have participated in the system. It is a
decision that authors have made in the case, unlike in
the Google case. And whether the price would be zero
and how many authors would be willing to do it for zero
is not something I can speculate on in terms of
percentage or books or authors.
Q What facts do you possess now that would
support the notion of there being anything different?
A As I said, there may be differences between
the Amazon system and the Google system I'm not aware
of. What I -- my report states is that it is fairly
easily -- it would be fairly easy for a CMO to license
those uses, should it be determined that they need to be
licensed, as I, from what you're saying, understand is

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the case with Amazon. The price of the license is a
matter to be negotiated.
Q Do authors use a collective management
organization to opt-inside the book?
A I don't know.
Q Did you look at that?
A No, I did not look at Search Inside the Book
in Amazon for my report.
Q Did you ask anyone from CCC whether they ever
approached Amazon and offered anyone to license search
inside the book?
A No.
Q Do you know whether, in Google Books, if you
see a return on a book on a search, you are then
presented with a link to a place where you can buy the
book?
A I read that in one of the documents in -- that
I used to my prepare report. I believe it's a
declaration by somebody that Google -- that works at
Google. The name escapes me.
Q Have you seen that in your own use of it?
A No.
Q You've never seen a page where there's been a
link to Amazon or Barnes or Nobel?
A I have not looked for one, but I have not seen

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one.
Q So on the topic of what markets are similar
markets, as you phrase. So in forming your opinion with
respect to search of the full text of a book, what
similar markets did you look at?
A Online uses of parts of books.
Q Okay. Who is the seller in the Search Inside
the Book that you looked at?
A I did not look at Search Inside the Book.
Q I'm trying to distinguish uses, okay?
A Okay.
Q One use is search, agreed? That's one thing
Google Books allows users to do?
A Yes. It allows people to search inside books
and read snippets, yes.
Q And you agree with me, as a copyright expert,
that you could license search separately from display of
snippets; correct?
MR. SNYDER: Objection to form.
THE WITNESS: If you're talking about
contracts, parties can negotiate a contract the way they
want. They can license different uses in different
contracts.
BY MR. McGOWAN:
Q They could do that; right?

Filed 08/26/13 Page 43 of 61

A They could.
Q I want to focus on search.
A Okay.
Q Are you aware of any seller in a market that
sells a license for search only?
A For search only, I'm not aware of a license
that is limited to that, although what you've described
from the Amazon system looks like it's a license to do
that but with a zero rate.
Q You didn't look at that?
A Not for this report.
Q You didn't look for any others?
A I do not have access to the contract that
Amazon provides for search inside. I did not have that
access, so I did not look for it.
Q So just so you know, it's an exhibit
downloaded from the Internet in other depositions in
this case. Did you -- did you not go to the web page
and try and download it?
A I did not see that exhibit. The Amazon
contract, I did not see it for some reason.
Q Did you look on Amazon?
A I did not look at the Search Inside the Book
for purposes of this report.
Q And you don't know of any other market in
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which the right that is traded is the right to search
inside a book?
A Well, other than the Amazon situation that
you've described, I cannot come up with an example of a
search only license, no.
Q Can you come up with an example of a right to
reproduce a work where the only use allowed is search?
A I can think of licenses for reproduction. The
search obviously returns a snippet so that you're
separating things that are very hard to separate. The
reproduction happens, then the search happens, and then
the snippet happens.
Q You'll agree with me, I take it -- tell me if
you disagree. Is it a premise of your opinion that it
is technically impossible to perform search without
snippet display?
A I don't know. If you search, you must return
something. Presumably, you could return something other
than the snippet, yes.
Q Page number?
A Pardon?
Q Page number?
A I suppose so.
Q It would be less useful?
A You know, the bibliographic data could be

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returned. I don't -- I'm not sure what could be
returned other than the snippet. I'm sure there are
options.
Q So focusing now on an agreement in which the
use licensed is, you may reproduce the work and search
within the work and return, let's say, bibliographic
information only, or a page number only.
Are you aware of a market in which such a
license is sold?
A Bibliographic data, I don't think there's a
license that I can think of now that does only that.
Q Okay. Snippet -A Um-hum.
Q -- three Lines. Has CCC even licensed, to
your knowledge, 3 lines of display only?
A I don't know about three lines, but they've
certainly licensed very short excerpts for use on
websites or in newsletters, those kinds of uses.
Whether it's three lines or a little bit more or less, I
cannot say exactly.
Q What is the shortest excerpt you can think of?
A I can't think of a -- I can think of fairly
short excerpts, but I can't quantify them.
Q You don't know as a percentage?
A No.

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Q Do you know the -- the default limitation in
CCC's course pack, services is two chapters or
20 percent?
A That's the upper limit.
Q Upper limit, yes.
A Um-hum.
Q Two chapters -A Sounds right. I haven't checked it recently,
but that sounds right.
Q On Page 867 -A Of what? Sorry.
Q Of your tangled web paper.
A Yes.
Q You say near the bottom of Page 867, "A
distinction must be made between use value gained by the
user and lost exchange value by the rightsholders."
Do you see that?
A Yes, I do.
Q The proper test is when a commercial
exploitation and seems to focus on the latter -- sorry.
The proper test is commercial exploitation and seems to
focus on the latter. Put in blunt returns, is the
derivation parasitic or simply free writing?
A I do.
Q Do you agree that that is a distinction that

Filed 08/26/13 Page 44 of 61

must be made?
A This part of the paper refers to, very
specifically, derived content which is defined earlier
in the paper as reuse of content to create other
content.
And so I was -- I'm referring here to
terminology suggested by others, which goes back to fair
use and juris prudence and other cases where the impact
on commercial exploitation is a relevant factor.
Q These phrases that I just read are not in
quotation marks; correct?
A They are not in quotation marks. Whether they
track what is said in, for example, David Gauthier's
paper, I don't recall.
Q Morals By Agreement is a book on ethics?
A Yes, that's what I recall.
Q What do you mean by the term you use, which is
parasitic or simply free writing, is the derivation of
parasitic or simply free writing?
A I was trying to draw a distinction in the
paper because this area of copyright law is very complex
in the forms of derivation which, again, means reuse to
create something else. And earlier in the paper, I
believe it's 18 -- I say the issue of derivative rights
is not fully addressed in the paper. It is a very
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complex issue.
What I describe here is that there are various
types of derivation. If it's simple free writing, it's
not the same as a parasite on an existing work that may
have a type of value that would be sufficient, allow it
to survive a fair use analysis.
But if it's free writing, it's very unlikely
that this would happen. If you read the following
sentence, "Parasitic behavior imposes negative -(Court reporter interrupted the proceedings
to preserve the record.
THE WITNESS: Sorry. "Parasitic behavior
imposes," for whatever reason there's some British
spelling -- "imposes negative externalities on the
rightholder, a free rider merely benefits from positive
externalities."
So I'm really focusing on the impact of the
reuse. So I think the paragraph makes the -- answers
your question in a way.
Q So free writing, in the context you're using
it here, is not objectionable from the point of view of
the analysis that you are discussing?
A No. They both might be objectionable.
Q Well, when you say a free writer merely
benefits from positive externality, in what way is that

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different from parasitism?
A Parasitisms will -- a parasite attacks the
host. So it basically impacts the original work. The
free writer only rides the wave of the original work.
But that doesn't necessarily impose negative
externalities on the -- on the original work.
Q So if I can modify the biologic metaphor
slightly.
A Um-hum.
Q A parasite is undercutting a market in which
the work has been derived from is being exploited?
A Parasitic behavior might include free use of
an existing work in a way that affects that work, but we
might still decide that that is allowable. Criticism
parity, free writer doesn't do that. Free writer
basically takes something out there and rides the wave.
It's -- it does not affect negatively the original work.
Q And the -- the free writer is less likely to
be objectionable than the parasite, though neither is -A I would not say that. I think they might both
be objectionable. It's contextual.
Q It depends on the facts?
A It depends, as I say, on -- it depends on the
facts, yes, to the extent that you come to fair use
analysis. And I say then you would look at the fair use

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analysis and apply the criteria.
Q And the facts might vary one work to another?
MR. SNYDER: Objection to form.
THE WITNESS: Might, yes.
BY MR. McGOWAN:
Q So what work is this distinction doing for you
here? Why are you drawing it in this paper?
A Well, I think the distinction is made to
inform a fair use analysis in the way that is explained
in the following sentence, which says if there are no
demonstrable lost sales, user derives content might fit
in the free writing category.
But if there are demonstrable lost sales, then
it's parasitic because of the negative externalities.
And I say that that's relevant to fair use analysis.
But I didn't push it. And again, I refer you to earlier
in the paper where I say issue of derivation in
copyright is something that I planned when I wrote this
article to get back to because I consider it, perhaps,
the harder -- hardest question in copyright law at this
point -Q Is it your understanding -A -- with Note 76.
Q Sorry. Are you done?
A I'm done.

Filed 08/26/13 Page 45 of 61

Q Is it your understanding that Plaintiff Miles
has lost any sales as a result of Google's conduct in
this case?
A I did not check who lost or who didn't lose
sales.
Q Do you know, one way or the other whether any
of the plaintiffs lost any sales?
A No. I believe that is for the plaintiffs to
establish, and I did not look or ask them.
Q Assume with me that -- if you had read their
depositions, you would have seen that each of them said
that they were not aware of having lost any sales -would that put them on the nonparasitic side of the
distinction you just drew?
A It is a relevant distinction for the purposes
of derivation. In here we're talking not about creating
other works, at least not the -- the definition of
derivation in the context of user generative content
does not apply to these plaintiffs.
Q Yes. The economic consequences that you're
discussing, the difference between parasitism and free
writing as economic matter is not limited to any
particular form of use, is it?
A You say that. But in my paper, I say -- I'm
talking about derived content as a subset of
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user-generated content. I would not take that paragraph
beyond that.
Q I am asking for your opinion as a professor of
law at Vanderbilt University. I'm asking whether, in
your opinion, the distinction that you draw in the paper
is limited to only derived uses and, therefore,
inapplicable to any others?
A I don't know. I would have to give it more
thought. I mean, you take one paragraph from a
four-year-old paper and ask me to broaden it. I can't
do that in two minutes. I'd need to think it.
Q You've cited the Landes and Posner copy of
Intellectual Property Foundations book in your work from
time to time, have you not?
A I've consulted that book and sure, I've cited
it, yes.
Q Do you know whether it contains any limitation
of the distinction between parasitic and free writing to
derive works only?
A I don't recall.
Q Are you aware of any text in copyright law
that says that distinction is limited only to derived
works?
A I'm limiting it to my paper, but other authors
are obviously free to take it elsewhere. And all I'm

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saying is I don't have, now, the ability to do so. I
would have to think it through.
Q I understand that you're talking about how you
have used it in the paper. What I'm asking is whether
you are actually affirmatively stating that it does not
apply outside of the context?
A I am not making any statement one way or the
other. It may or may not. I don't know. I would have
to think it through.
MR. McGOWAN: Let me ask that we mark as
Exhibit 10 the email that you reference earlier to
Mr. Haber.
THE WITNESS: Yes.
MR. McGOWAN: And my thanks for forwarding it
to us during the deposition. I appreciate that.
(Exhibit 10 was marked for identification.)
BY MR. McGOWAN:
Q This was written on March 25th. Is this the
email that you referenced?
A It is.
Q Had you spoken to Mr. Haber about your work on
this report before sending this email?
A I don't believe so, no.
Q Okay. At the top of your Page 1 it says, "I
will be able to give you the context fairly quickly.

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You will see why I had to get this right."
A Correct.
Q Did you give him the context?
A I believe I spoke to him since and told him
that I had filed a report and -- in the Google case. He
was already aware of it, for some reason.
Q What did you tell him about your work?
A Just what I said, that I said -- I filed the
report. The report that I was talking to you in March
was for the Google case. And I think his answer was, I
know, or something -- I don't think he indicated he had
seen it, but he was aware of it.
Q Did you tell him anything about the case?
A No.
Q Did you tell him who had retained you?
A No.
Q Did you tell him which side your report was
going to be filed on?
A My sense was he was aware already. So the
discussion did not move further.
Q You sensed that he was aware that you had been
retained by the plaintiffs?
A He was aware what was going on in terms of my
report having been filed on behalf of the authors, yes.
Q Well, let me -- let me back up. It appears to

Filed 08/26/13 Page 46 of 61

me from this email that he has taken some of your text
and edited it and sent it back to you?
Is that what happened?
A I sent him a draft of one paragraph, and he
sent it back, yes -Q Okay.
A -- with some line edits, as you can see.
Q Do you have the email in which you -- is the
email in which you sent the draft the one at the top?
A No. The email I sent him is at the middle of
Page 1. And I say, "On a strictly confidential
basis" -- there is a typo -- "I'm writing a report."
But at that time, I had not disclosed that I
was writing this report to anybody, so I hadn't
mentioned that here. I said, "It includes a paragraph
on CCC. If you have a second" -THE REPORTER: Could you please slow down.
THE WITNESS: -- "could you check to make sure
all is accurate, please."
And so what he did is he returned the email to
me with his edits on my paragraph.
Q In the red line?
A In the -- yes, correct. So you have my email.
And then he added -- the language at the end
is actually part of his response to me that is part of
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Footnote 1.
Q And that footnote in which he says, "I hope
there is some mention that most of the 171 million is
not from the amount collected."
A Um-hum.
Q Did you copy that, or portions of that, I
should say, into your report?
A As I recall, it's the footnotes that uses more
or less the substance, but not the exact language.
Yeah, Footnote 15. I did not reproduce the numbers, but
the substance.
Q Have you had any discussions with him since
the exchange reflected in Exhibit 10?
A About the case, no.
Q And I take it, just to be sure, you haven't
had discussions with anyone else at CCC about the case.
A About the case, no. Absolutely not.
Q Do you have any financial interest in CCC?
A No. It is a not-for-profit, in any event.
MR. McGOWAN: I need to ask that we mark as
Exhibit 11 -(Exhibit 11 was marked for identification.)
MR. McGOWAN: -- a document called "Insights."
THE WITNESS: Um-hum.
BY MR. McGOWAN:

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Q And is this an article that you wrote, or how
would you describe it?
A This is a summary of a longer piece that is
published in the Stanford Technology of Law Review that
the editor of Insight -- I forget her name -- having
seen my Stanford piece said, "Would you be willing to do
a condensed version for Insights?"
And I agreed to do that.
Q This is available for download?
A The Stanford piece, absolutely.
Q This one, as well?
A I -- I don't know if this piece is online or
for members only.
Q The very last paragraph which is -A On which page?
Q The next to the last page. And the page -the paragraph just before your bio.
A Yes.
Q It says, "At this stage, Judge Chin has asked
the parties to revise their agreement, possibly making
it opt-in for all rightsholders. This would not solve
the orphan works issue" -A Um-hum.
Q -- but it might solve the MFN issue if all
foreign rightsholders have an equal opportunity to

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join."
Q What is the orphan works issue?
A The orphan works issue is the use of works,
the rightsholder in which is unknown or unlocatable.
Q Is that a problem?
A Orphan works -MR. SNYDER: Objection to form.
THE WITNESS: -- are something that many
people, including U.S. Copyright Office, have been
working on. It is an issue as a certainly theoretical
matter to figure out what to do with orphan works,
specifically in terms of damages.
And so, to that extent, there has been work
going on on orphan works. The extent to which it is a
problem is that's it's starting to be quantified, as far
as I know, by studies done by other people. And I -- I
don't recall what the numbers are. But I know there is
work being done to quantify how big the issue actually
is.
BY MR. McGOWAN:
Q Let me take these in order. What is the
issue?
A Well, the issue is if you don't know who the
rightsholder is, and the work, that there is no one to
contact to obtain a license to use the work. And so

Filed 08/26/13 Page 47 of 61

that can create some obstacles.
Collective management organizations have
actually been dealing with this issue -- sorry. Just
saw the name of the editor.
-- have been working on this for a quite some
time. Some collective management organizations have
actually, more or less, solved the problem by collecting
money for the use of works, not knowing who the exact
rightsholder is, and will then keep that money and pay
it if the rightsholder materializes. So that's one way.
But the U.S. Copyright Office has proposed
other options in terms of limiting damages for the use
of those works. Those are all worthy for their
consideration. An opt-in system does not, by itself,
solve that issue.
Q Let me -- we have five minutes left. Let me
ask one more question, and then we'll come back to this.
If you can't find the rightsholder, then the
difficulty is that you can't use the work?
A You can't -Q To the extent you need permission; correct?
A Unless permission is given by law or some
other way, yes.
Q And the rightsholder can't get paid?
A The rightsholder can get paid, if there's a
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collective that collects and pays, and that is quite
common, in fact.
Q Are this collectives collectors that are
granting permissions when they don't have the rights?
A Very often, they operate under compulsory
licensing or other similar systems and -(Court reporter interrupted the proceedings
to preserve the record.)
THE WITNESS: Compulsory licensing.
BY MR. McGOWAN:
Q So we're not talking about books in the
United States?
A We are not talking about books in the
United States here, no.
MR. McGOWAN: Let's change the tape.
VIDEOGRAPHER: This is the end of Disk 2 of
Daniel Gervais. Off the record at 2:57.
(Recess taken.)
VIDEOGRAPHER: This is Disk 3 of Daniel
Gervais. On the record at 3:06.
BY MR. McGOWAN:
Q Professor Gervais, before we broke, we were
speaking about the orphan works issue that you described
in your Insights paper.
Did I understand you to say that you

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understood that collective management organizations had
solved the orphan works problem -- or strike that.
Did you say that?
A I said that in some context they've certainly
done what they could to solve it by collecting. I
mentioned specifically a compulsory which is a case
where you don't need a license, but you do need to pay
somebody. But if you can't find a person, then the CMO
has the duty to find that person to make sure that the
money actually gets paid.
So in those cases, they do, to a large extent,
solve the problem. In the case where a license is, in
fact, required, it may be that a legislative solution
would be a better option.
Q With respect to in copyright books in the
United States, do you believe that there persists an
orphan works issue, as you put it here?
A I have just recently started to look at
material on how extensive the problem is. I don't have
enough data to answer the question one way or the other.
Q When you refer to the orphan works issue here,
were you referring to the United States?
A The piece is really an international piece.
And so it refers, certainly, not just to the
United States. There are authors from foreign countries

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that would certainly be concerned here as well.
Q You don't know what fraction of orphan works
rightsholders have been found?
A All I can say is I read -- scanned a report
that I believe Berkeley Law School made available. And
it said that it was very hard to quantify. So to that
extent, that's all I know about quantification of the
problem.
Q In the next sentence in this paragraph you
say, "It is not at all clear that Google -- which has
the money to withstand a protracted legal battle with
publishers -- will find an opt-in settlement
commercially worthwhile."
Do you see that?
A I do.
Q Was that correct at the time you wrote it?
A Well, my -- my sense is we had no indication,
and I don't think there has been since from Google -that they favor an opt-in settlement. But I don't have
specific information. I just have not seen information
to that effect.
Q Your testimony, then, is not that if the court
rules against Google and the fair use defense, as you
posit in the report, that there will, in fact, be
bargaining?

Filed 08/26/13 Page 48 of 61

MR. SNYDER: Objection to form.
THE WITNESS: There was -- there were three
clauses there, so I will have to ask to you repeat the
question.
BY MR. McGOWAN:
Q Okay. Let me break it down.
In your report, you hypothesize a situation in
which Google's fair use defense is not accepted. And as
I understand your opinion, it's that in the event
Google's fair use defense is not accepted, collective
management organizations will facilitate bargaining.
Is that fair?
A Or possibly congress, as mentioned in the
report, yes. But I do believe that the voluntary
non-congress solution would, in fact, emerge.
What the report says is, if it's not fair use
or to the extent that it is not fair use, it is possible
to license it using the technology and expertise that we
have. And it is then possible to create a licensing
environment for the uses that are not considered to be
fair.
Q Are you actually opining that Google would
participate in such negotiations?
A I -- as I opined earlier, Google agreed, as
far as I understand, to the terms of a previous
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settlement. It owns a collective management
organization. I don't have a reason to think that
Google would be incapable of considering a collective
management solution here.
Q I didn't ask whether it was capable of
considering it. I asked if you are opining that Google
will, in fact, participate in such negotiations?
A That will, in fact, participate -Q Yes.
A I don't know.
Q In this paragraph that you wrote, you say that
it's not clear; correct?
A That's right. That's why I say I don't know.
MR. McGOWAN: I'm going to hand you what's to
be marked Exhibit 12 -(Exhibit 12 was marked for identification.)
MR. McGOWAN: -- the transcript of the
deposition of one of the named plaintiffs.
THE WITNESS: Okay.
BY MR. McGOWAN:
Q Betty Miles. And just to be clear, you have
not previously read this?
A I do not recall reading this. You know, I
reviewed a whole bunch of documents in early February.
I'd have to -- I don't recall. It's possible that I

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did.
Q On the second page, so if you turn this over.
A Yes.
Q At the very bottom it says, Page 9 to 12 of
111. And in the rectangular pages, it's Page 11?
A I see it.
Q In this portion of Ms. Miles' testimony, the
question is put to Ms. Miles, "Is one of the things you
are asking the court to do is to stop Google from
displaying snippets of books on Google Books?"
Do you see that?
A Yes.
Q And she says, "Yes."
And she is then asked at Line 7 and 8 -- and
feel free to read down to the full page. At Lines 14 to
19 she's asked why does she want the court to stop the
display of snippets.
She says, "I don't want people to read books
that they search via the snippet without my control or
permission."
Do you see that?
A I do.
Q Is that a position you endorse, that people
should not be able to read snippets on the internet
without permission of an author?

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A I don't know what she means here. As I said
before, I believe the optimal solution is that material
should be available and monetized. I can't, from this
excerpt, know whether she's talking about the fact that
she's afraid that, via snippet, they'll get too much of
the book or is she opposed to a single snippet. And so
it's very difficult to -- to understand.
What I am also saying, however, I'm not sure,
as a matter of law, we should take away her right to
decide that.
I'm saying, as an optimal solution, if I were
an author, I would put my material out there and look
for a way to monetize it.
Q Now, I thought you said you had made no fair
use determination in this case; correct.
A It's is not a fair use determination. This is
me saying, as an author, I would authorize, as I
actually do, the use of my material. And if I were
writing the type of content that, I suppose, that -- I
don't even know what she writes. She might be looking
for a way to monetize that, but she might have decided
snippets are not for her.
Q When you say the right to decide that?
A The right to opt out entirely.
Q You are not referring to a determination you

Filed 08/26/13 Page 49 of 61

have made in this case that authors have a right to
control individual snippets?
A I don't know if they do.
Q Do you want Google Books to be taken down?
A No. I say it's desirable in my report.
Q If Ms. Miles seeks to have it taken down, do
you think that would be a bad thing?
A I think if she wants her content off Google
Books, she could get that; right.
Q Do you know if Google Book allows authors to
opt out?
A I read somewhere they do in the materials that
I reviewed. Again, I don't recall which declaration it
was.
Q Are you aware that none of the named
plaintiffs have asked that their books be removed?
A I'm not aware of that.
Q So let me go back to my question that I
originally asked, is would it be good thing if Google
Books were taken out?
A My report -MR. SNYDER: Objection to form.
THE WITNESS: I answer that question already.
It's in my report.
BY MR. McGOWAN:
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Q The answer is no?
A The answer's on the record. I say in my
report, I think it's a desirable and probably inevitable
use that material will be made available online.
Q Including in Google Books?
A Including in Google books.
Q Let me take you back to Exhibit 2, which is
your report.
A What is 2?
Q Your report.
A Oh, okay. Yes.
Q Paragraph 42 on Page 14.
A Last one, yes.
Q Says, "Allowing practices like Google's as
fair use."
Practices. What practices do you refer to?
A Of scanning entire books, making snippets
available. The type of practices that I described
earlier, which I understand to be the Google Books
system.
Q Scanning, snippets, search?
A Search is not specifically discussed in my
report.
Q Why not?
A I didn't -- you know, the types of uses that

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are licensed that I'm familiar with are copying and
making these snippets available is something that could
also be licensed because it very much resembles reuses
of parts of books. And so that's something that can be
there. You asked me if I was aware of a search license.
I am not aware of a search license. There may very well
be one out there.
Q Let me -- do you understand that after Google
scans a book, it enables search of that book by
indexing?
MR. SNYDER: Objection to form.
THE WITNESS: You asked that question earlier.
I -- again, I don't know how technology is used by
Google. I don't know what even indexing means in that
context. But I know that Google makes the work
searchable online using words.
Q And the scan is, in a sense, an input to the
search function?
A I don't -- I assume the scan is -- is a
function part -- a function or a part of the process to
make the book searchable, but that is not my area of
expertise.
Q You understand, do you not, that one of the
things you can do with Google Books is search a large
number of books very quickly?

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A That sounds -- strikes me correct, yes.
Q Quicker than you could do in a card catalog?
MR. SNYDER: Objection to form.
THE WITNESS: Most likely. I haven't used the
card catalog in so long, but that certainly sounds
right.
BY MR. McGOWAN:
Q And using full text instead of catalog key
words?
A Using full text? Yes. Yes, although, you
know, is that necessarily a win in every case, isn't
something I would be prepared to say yes to. Going to a
library and seeing the book on the shelf and seeing
other books in the same indexed part of the library is
something I've done several times.
So what I'm saying is Google books allows
users to do things that you can't do with card catalogs,
but maybe there are things you can do with card catalogs
or other types of indexes that you can't do with Google
Books.
I have not made the comparison fully, so I
wouldn't say that Google Books is necessarily better in
every case. I don't know.
Q You would say faster?
A Faster strikes me as definitely accurate, yes.

Filed 08/26/13 Page 50 of 61

Q And full text as opposed to an arrangement
dictated by key words?
A Yes. That strikes me as accurate as well.
Q And as opposed to a bibliographic system
adopted by a library?
A Which has, as I just mentioned, potentially
other advantages. But that's not a comparison I have
studied specifically.
Q Okay. You understand, in general, that Google
Books is a search tool?
A Yeah. We'd have to define words again. But
it's certainly -- one of the things Google Books allows
people to do is to search the context of books.
Q Okay. Is that among the practices you refer
here to in Paragraph 42?
A The practices that I really focus on in this
report is copying entire books and making snippets
available. I do not know whether these are fair uses.
If they are not fair uses, they can be licensed.
Q And as you have said, "can be" in a physical
technical sense is, in and of itself, not evidence that
a use is unfair?
A In itself, I say, yes.
Q And you haven't made a fair use determination
here, you have mentioned that?
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A Correct.
Q So what I'm trying to understand, very simply,
is does this report exclude search from the scope of its
opinion?
A Well, if the reproduction is not a fair use,
then there can be no search based on the way that you've
explained reproduction earlier as a necessary part of
search on which I have to take your word for it because
I don't know. It sounds reasonable.
Searching inside the book is, again, not
something I have seen specifically licensed as a -- as a
single function. It may be that in some case it is.
What you've referred as indexing, I can't say because I
would need to define the word. But I've not -- I don't
recall the contract licensing agreement specifically
directed to just the indexing function.
Q Sure. I understand that.
I want to ask, with respect to your report -A Um-hum.
Q -- how do you account for the fact that the
reason the texts are scanned is to facilitate the
search?
MR. SNYDER: Objection to form.
THE WITNESS: I understand that's one of the
purposes. If you reread Paragraph 13 in my reports --

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in my report -- it says, "Making books and other
copyrighted works available online is desirable both for
authors and readers."
Now, Google Books make snippets available, and
in many cases that may, indeed, be desirable. But I
actually believe it would make sense, I think in some
cases, to allow authors to make more than snippets
available. That's also something that could be
licensed. I understand that's not part of the snippet
program, but the thrust of my report is that the current
uses can be licensed and a license would also allow a
license to do more. I believe that, in fact, is
specifically what the proposed settlement envisions.
BY MR. McGOWAN:
Q Is your report basically saying that you could
do the proposed settlement again?
MR. SNYDER: Objection to form.
THE WITNESS: My report doesn't speak to
whether you can do the proposed settlement again. My
report says that if there's a settlement or other
outcome of this case that says that some uses need to be
licensed, that can happen fairly quickly and easily.
Q Through the CCC?
A As one example.
Q But you don't have any others?

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A I mentioned the possibility of icopyright.com.
I would have to check what their exact ability is. But
that's what they do. But whether it is scalable, I
don't know.
THE REPORTER: Whether it's what?
THE WITNESS: Scalable.
BY MR. McGOWAN:
Q So Paragraph 13, which you just referred to me
to answer my question about search, does not mention
search?
A No. I did not make a specific determination
with respect to licensing just search.
Q I'm asking where, in the report, you take into
the account the fact that the purpose of the scan is
facilitating search. I want to see the paragraph where
you take that into account and discuss it.
A Search is mentioned in Paragraph 10. It
displays snippets of these books and search results, so
clearly there's an understanding that this is what this
system is used for. And there is somewhere else in the
report -- I don't see a specific discussion of search
beyond the mention in Paragraph 10.
Q And the mention in Paragraph 10 pertains to
the results?
A But it shows an understanding of what the

Filed 08/26/13 Page 51 of 61

system is, which is you search and you get results.
Q Okay.
A I believe that's why a user would typically
engage in a search process.
Q Is it relative to your analysis that the
purpose of scanning is to facilitate search?
A You're asking me as a matter fair use?
Q I'm asking you as a matter of your report.
A My report's very clear. It is not a fair use
to make copies of entire books. This can be licensed.
I do not make -- I am not opining. I am not making a
determination as to whether the copying of these books,
whether it's for research or some other reason is fair
use. That is not something I am making a claim about in
any way.
Q Would your report read differently, other than
the one referenced in Paragraph 10, if this copying were
not for the purpose and did not, in fact, facilitate
search?
MR. SNYDER: Objection to form.
THE WITNESS: Very difficult hypothetical
question. I did not -- I would have to rethink my
report with a different set of facts.
Q You only mention it once -A Um-hum.
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Q -- in terms of display?
A Yes. The report at the end of Paragraph 12,
for example, refers to digital use of books, and then it
refers to widespread copying of entire books. That's
one of the issues -- one of the -- whether it's for
search or not, and whether that impacts a fair use
determination, is for someone else than me to decide.
Q Sure. Does it impact licensing?
A If it's not a fair use, it will, in order to
continue, need to be licensed. And so . . .
Q Does the fact that a scanned book may be
searched, in your view, affect any of the licensing you
hypothesize?
A I assume, only thing I can answer, is that the
search function would be something that would be
addressed in the license as I, again, assume from your
earlier comment, that it is in the Amazon case. But I
have not researched the Amazon book display or whatever
it's called directly, search inside function.
It might be something that would be covered in
the license, and -- and -- and how it would be covered
would be something to be negotiated by the parties.
My point is, it can be licensed. And one way,
and the efficient way to do this, is for collective
management.

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Q It might or might not; right?
A Might or might not what?
Q It might not be included in the license. You
don't know; right?
MR. SNYDER: Objection to form.
THE WITNESS: I am not expressing an opinion
as to whether a search should be separately licensed
here.
BY MR. McGOWAN:
Q And if the court rules against Google's
defense, you don't know whether it would be, do you?
MR. SNYDER: Objection to form.
THE WITNESS: My report, actually, on this
point says that I think the market would respond and
make a such a license possible.
Q Okay. So we're on paragraph -- such a license
possible. My question is whether a license would be
struck. I'm not asking whether it is physically
possible.
A Um-hum.
Q Is that -A You're asking?
Q -- distinction clear?
A Yes. You're asking a question about the
future. I cannot say for sure what the future holds.

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What I can say, as an expert in this case, having looked
at existing practices based on the old saying that the
past is prologue, I'm saying that I am confident that a
collective management system would emerge to license the
type of uses that I consider desirable which includes
making books available online.
I believe that is a both feasible, logical,
and commercially viable thing that would happen.
Q By making available online do you mean like in
the iTunes, Apple Bookstore, like E-Books?
A I'm not using "making available" in the
technical sense in which it is used in international
treaties. I'm using it in a colloquial sense of making
material available. But whether it's by download or
streaming or some other way is not something I was
trying to parse in that use of the word.
Q Or whether it is all of the work or part of a
work?
A That doesn't affect the making available
method, whether, it's a whole work or part of a work.
Q Whether a whole work is made available or only
a part is made available?
A Again, if that's not a fair use and needs to
be licensed, whether it is a whole work or part of a
work is -- is not -- doesn't change the substance of the

Filed 08/26/13 Page 52 of 61

opinion, which is this can be licensed.
Q When you say "can be," what, in addition to
it's physically possible to accomplish such a license
does your report opine?
A That -MR. SNYDER: Objection to form.
THE WITNESS: My report states quite clearly
that there are online uses of parts of books that are
currently licensed, have been for several years,
successfully. And I believe that the same type of would
apply, as indeed envisioned in the proposed settlement,
if this -- these uses, or some of them, are not fair
uses.
BY MR. McGOWAN:
Q Okay. When you say "would apply," is that a
probabilistic statement?
A I'm making a determination in this report
about future behavior, so it is necessarily problem -you know, probabilistic.
Q Probabilistic. Okay.
Past is prologue, your phrase.
A Correct.
Q If past is prologue with respect to -A Actually not my phrase technically, but yes.
Q The past is prologue with respect to searching
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inside a book, then Amazon's royalty free system would
be prologued for what would emerge in your licensing
world; correct?
A Well, both in the sense that it is licensed,
and what you're saying is that license fee is zero,
there have been uses in the past that were licensed at
zero, close to zero, and eventually the price changed as
the market evolved and a better understanding of
business models emerged.
I don't know if this would happen here, but a
licensing transaction at whatever the price to be
negotiated is, is, I believe, entirely consistent with
existing practice.
Q Okay. If the price is zero, authors are not
going to get money; correct?
A They are going to get the right to decide,
which I think has value to them. Whether that's a
dollar value in the specific case or not -Q Okay. They're not going to get money; right?
A If it's part of a broader deal in which
they're getting paid for certain uses, and that's part
of the negotiation, certain uses are unpaid for, that is
something that, you know, people can negotiate.
Q All right. I'm asking with respect to the
search function, if it's royalty free, they don't get

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money from the search function; correct?
A If it's royalty free, licensed as such, they
wouldn't get paid for the search function, per se.
Q If they were to get paid, it would have to
come from additional uses; right?
A Other uses, additional.
Q If they are not going to get paid from
licensing search, then the failure to license search is
not costing them money; correct?
MR. SNYDER: Objection to form.
THE WITNESS: In the -- in the very tentative
hypothesis that you're making, that this would be
licensed at zero, going forward, which I don't know, you
mentioned one example I am not familiar with in any
detail. And what the deal was, why those authors and
how many authors made the deal that you referred to with
Amazon is something that would need to be explored to
see if it can be extrapolated. I have not done that
work.
Q If they're not getting any royalty, then
they're not losing any from the failure to license;
correct?
A No, that's in incorrect. They can -- in a
contract where they agree to certain uses at zero,
consider that those uses are worth granting at zero

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because they're getting paid in other ways.
What you're assuming as a separate search
license at zero with no other consideration, that is not
my assumption.
Q I assure you we will through each tranche. I
want to start with the visible tranche of search.
A Okay.
Q If, in the current market, the opt-in price
for search is zero and is past is prologue, as you have
stated, then the payment to be derived from that would
be zero; correct?
MR. SNYDER: Objection to form.
THE WITNESS: No. Incorrect. That is
incorrect.
As I've tried to say -- I'll repeat it a third
time. You are making the assumption that licensed -that authors would be willing to license the search for
zero with no other consideration. I don't know that
that's what's happening.
BY MR. McGOWAN:
Q What other consideration do you assume will be
licensed? I am going to come back to this.
A I am not assuming anything. Your question is
asking me whether something is correct. I am saying no,
it's not correct.

Filed 08/26/13 Page 53 of 61

Q Are you saying in the bargaining that you
hypothesized in the event Google's fair use defense is
not accepted, that there will be no licenses for search
only?
THE REPORTER: "No license . . ."
MR. McGOWAN: For search only.
THE WITNESS: I don't know.
BY MR. McGOWAN:
Q You don't know one way or the other?
A It's possible that there would be license for
search only, but it seems it would make more sense that
encompasses a broader array of uses.
Q Why would it make more sense?
A I think that both parties would win. I think
all three parties would win. Authors would win because
more uses would be made of their work for which they
would be getting paid; google would be able to monetize
more uses of the books that it has scanned; and users
would get more uses of those books that Google has
scanned.
Q Okay. Let me come back to search.
Are you saying that you know that in the world
in which Google's fair use defense is not accepted that
there would be licensed in which users are compensated
for royalty free search because additional uses would be
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included in the license?
A I am saying that my best educated guess, based
on what I know and what I've explained in the report is
that this kind of licensing would emerge for uses that
are not fair uses beyond just search. I think the
license -- it would be in everybody's commercial
interest and other interest to have a license that
covers more than search.
Q Okay. What's the probability that would
happen?
A I think fairly high.
Q Can you give me an estimate?
A A number estimate, no.
Q You're not an economist; we know that.
A Exactly. And I'm not venturing a number. It
is probabilistic, but I'm saying that I think the
probability is fairly significant that is what happened.
Q Describe to me the method you used to derive
the conclusion that the probability is high?
A Okay. Well, I am using a number of criteria
such as existing licenses, past practice of the parties
involved, including the proposed settlement, and the
simple fact that it is usually fair to assume people
will act according to their best interest. And I see it
as this kind of broader license being in the best

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