The Authors Guild, Inc. et al v. Hathitrust et al

Filing 111

AFFIRMATION of Joseph Petersen in Support re: 100 MOTION for Summary Judgment.. Document filed by Hathitrust. (Attachments: # 1 Exhibit A-W)(Petersen, Joseph)

EXHIBIT A

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF THE AUTHORS GUILD,
INC. TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND
REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff The Authors Guild, Inc. (“Plaintiff”) hereby submits, pursuant to Rules 26, 34
and 36 of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for
the United States District Court for the Southern District of New York (the “Local Rules”),
Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories and Requests
for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a
General Objection for emphasis or some other reason. The failure to include any General

ESCAPE THE NIGHT
FAIR WARNING
MURDER BY AN ARISTOCRAT
Works by Sax Rohmer:
THE TRAIL OF FU MANCHU
PRESIDENT FU MANCHU
Plaintiff will conduct a reasonable search and produce documents, if any, concerning
royalties generated or expected to be generated from distribution of these works in digital format.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity any alleged harm you and/or your relevant
member have suffered or will suffer arising solely by virtue of each of the following, and
identify all documents related to the same: a) the inclusion of the work in Defendants’ digital
archives; b) the availability of a digital version of the work for use purely in connection with
non-consumptive research; c) the availability of a digital version of the work for use purely in
connection with full-text searching; d) the availability of a digital version of the work for use by
the blind or others with disabilities that restrict their use of standard printed works.
Plaintiff objects to this Interrogatory on the ground that it is impossible to predict, and
therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of Defendants’
various unauthorized uses of Plaintiff’s works. In addition, to the extent this Interrogatory is
being used in connection with Defendants’ fair use defense under 17 U.S.C. § 107, the correct
standard, to the extent it is relevant, is “the effect of the use upon the potential market for or
value of the copyrighted work.” Plaintiff further objects that the phrase “solely by virtue of . . .
the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and “dark archiving” of a digital version the works on Schedule A to the
HathiTrust Digital Library but without making such works available to others to view, print or

9

download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such works available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such works available to others to view, print or download;
or (d) the availability of a digital version of the work for use by the blind or others with
disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted works, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with non-consumptive
research;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works due to the availability of such works for others to

10

view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such works as public domain or “orphan works”;
•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of such work when stored,
distributed, sold and/or licensed in any format, including without limitation hardback, paperback,
and electronic and digital formats, and identify documents sufficient to substantiate the use of
such controls, by a) you; b) any publisher; c) any printer; d) any distributor; e) any warehouse; f)
any wholesaler; g) any retailer; h) any Internet host, website and/or online retailer in connection
with digital or electronic formats; and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiff’s works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiff’s claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s works without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Moreover, Plaintiff objects that this Interrogatory on the ground that most of the
information sought by this Interrogatory is in the possession or custody or third parties over
whom Plaintiff does not exercise control.
INTERROGATORY NO. 7: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls, used to prevent and/or detect unauthorized access to printed or electronic
works, that you have requested in any licensing, publishing, distribution and/or other agreements
related to such work, and identify all documents related to such requests.

11

hardback, paperback, and electronic and digital formats by any person or entity, including
without limitation you and any publisher; printer; distributor; warehouse; wholesaler; retailer;
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or any purchaser of such work.
RESPONSE: Plaintiff objects to this Request on the same grounds as set forth in
response to Interrogatory No. 6.
REQUEST NO. 7: All documents concerning the existence or non-existence of a specific
market or potential market for the digitization and further reproduction, distribution and/or
display of printed works for the purposes of a) electronic archiving; b) non-consumptive
research; c) full-text searching; and/or d) use by the blind or others with disabilities that restrict
their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and “dark archiving” of a digital version the

14

works on Schedule A to a “digital archive” in which such works are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with nonconsumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with full-text
searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work by the blind or others with
disabilities that restrict their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other

15

earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.

16

Dated: New York, New York
April 20 2012
__,
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

17

VERIFICATION
I, Jan Constantine, General Counsel for Plaintiff The Authors Guild, Inc., have read the
foregoing Responses to Interrogatory Numbers

1

through 7 and know their contents. The

responses provided therein are true to my knowledge, and as to those matters stated upon

information and belief, I believe them to be true. I verify under penalty of perjury under the laws
of the United States of America that the foregoing is true and correct. Executed on April 20

_,

20t2.

\

.

{L^ L[74td-?^Yta

,.'Jan Constantine

(//

FKKS: 453434.v1

r

9894.300

EXHIBIT B

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF THE AUTHORS LEAGUE
FUND, INC. TO DEFENDANTS’ SECOND SET OF INTERROGATORIES
AND REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff The Authors League Fund, Inc. (“Plaintiff”) hereby submits, pursuant to Rules
26, 34 and 36 of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules
for the United States District Court for the Southern District of New York (the “Local Rules”),
Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories and Requests
for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a
General Objection for emphasis or some other reason. The failure to include any General

distributed in electronic format and the publisher of any such works. Moreover, Plaintiff objects
that the request to identify “the specific digital, electronic or other machine-readable format” is
vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that none of the works on Schedule A have been distributed pursuant to
Plaintiff’s authorization, in digital, electronic or other machine-readable format within the last
ten years, but notes that recent inquiries and efforts have made to distribute the works on
Schedule in electronic format. Plaintiff will conduct a reasonable search and produce
documents, if any, concerning such inquiries and efforts.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity any alleged harm you and/or your relevant
member have suffered or will suffer arising solely by virtue of each of the following, and
identify all documents related to the same: a) the inclusion of the work in Defendants’ digital
archives; b) the availability of a digital version of the work for use purely in connection with
non-consumptive research; c) the availability of a digital version of the work for use purely in
connection with full-text searching; d) the availability of a digital version of the work for use by
the blind or others with disabilities that restrict their use of standard printed works.
Plaintiff objects to this Interrogatory on the ground that it is impossible to predict, and
therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of Defendants’
various unauthorized uses of Plaintiff’s works. In addition, to the extent this Interrogatory is
being used in connection with Defendants’ fair use defense under 17 U.S.C. § 107, the correct
standard, to the extent it is relevant, is “the effect of the use upon the potential market for or
value of the copyrighted work.” Plaintiff further objects that the phrase “solely by virtue of . . .
the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)

8

Defendants’ uploading and “dark archiving” of a digital version the works on Schedule A to the
HathiTrust Digital Library but without making such works available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such works available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such works available to others to view, print or download;
or (d) the availability of a digital version of the work for use by the blind or others with
disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted works, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with non-consumptive
research;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

9

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works due to the availability of such works for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such works as public domain or “orphan works”;

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of such work when stored,
distributed, sold and/or licensed in any format, including without limitation hardback, paperback,
and electronic and digital formats, and identify documents sufficient to substantiate the use of
such controls, by a) you; b) any publisher; c) any printer; d) any distributor; e) any warehouse; f)
any wholesaler; g) any retailer; h) any Internet host, website and/or online retailer in connection
with digital or electronic formats; and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiff’s works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiff’s claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s works without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Moreover, Plaintiff objects that this Interrogatory on the ground that most of the
information sought by this Interrogatory is in the possession or custody or third parties over
whom Plaintiff does not exercise control.

10

RESPONSE: Plaintiff objects to this Request on the same grounds as set forth in
response to Interrogatory No. 7.
REQUEST NO. 6: All documents concerning any physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of any work listed on Schedule A
when stored, distributed, sold and/or licensed in any format, including without limitation
hardback, paperback, and electronic and digital formats by any person or entity, including
without limitation you and any publisher; printer; distributor; warehouse; wholesaler; retailer;
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or any purchaser of such work.
RESPONSE: Plaintiff objects to this Request on the same grounds as set forth in
response to Interrogatory No. 6.
REQUEST NO. 7: All documents concerning the existence or non-existence of a specific
market or potential market for the digitization and further reproduction, distribution and/or
display of printed works for the purposes of a) electronic archiving; b) non-consumptive
research; c) full-text searching; and/or d) use by the blind or others with disabilities that restrict
their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without

13

waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and “dark archiving” of a digital version the
works on Schedule A to a “digital archive” in which such works are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with nonconsumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with full-text
searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work by the blind or others with
disabilities that restrict their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121

14

specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.

15

Dated: New York, New York
April 20, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

16

VBRIFICATION
I, Isabel Howe, Director of Plaintiff The Authors League Fund, Inc., have read the
foregoing Responses to Interrogatory Numbers

1

through 7 and know their contents. The

responses provided therein are true to my knowledgeo and as to those matters stated upon

information and belief, I believe them to be true. I veriff under penalty of pedury under the laws
of the United States of America that the foregoing is true and correct. Executed on April 20
2012.

FKKS: 453905.v1

-,

I

9894.300

EXHIBIT C

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF THE AUSTRALIAN SOCIETY OF
AUTHORS TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND
REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff The Australian Society of Authors Limited (“Plaintiff”) hereby submits,
pursuant to Rules 26, 34 and 36 of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3
of the Local Rules for the United States District Court for the Southern District of New York (the
“Local Rules”), Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories
and Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a
General Objection for emphasis or some other reason. The failure to include any General

format within the last ten years and, if so, identify for each such work a) the specific digital,
electronic or other machine-readable format(s) in which it was distributed; b) the number of
copies of the work distributed in such format(s); c) the publisher(s) of the work in such
format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Plaintiff objects that this Interrogatory on the ground that it is duplicative,
as Plaintiff already identified whether any of Plaintiff’s works on Schedule A have been
distributed in electronic format and the publisher of any such works. Moreover, Plaintiff objects
that the request to identify “the specific digital, electronic or other machine-readable format” is
vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that none of the works on Schedule A have been distributed, pursuant to
Plaintiff’s authorization, in digital, electronic or other machine-readable format at any time since
2001.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity any alleged harm you and/or your relevant
member have suffered or will suffer arising solely by virtue of each of the following, and
identify all documents related to the same: a) the inclusion of the work in Defendants’ digital
archives; b) the availability of a digital version of the work for use purely in connection with
non-consumptive research; c) the availability of a digital version of the work for use purely in
connection with full-text searching; d) the availability of a digital version of the work for use by
the blind or others with disabilities that restrict their use of standard printed works.
Plaintiff objects to this Interrogatory on the ground that it is impossible to predict, and
therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of Defendants’
various unauthorized uses of Plaintiff’s works. In addition, to the extent this Interrogatory is
being used in connection with Defendants’ fair use defense under 17 U.S.C. § 107, the correct
standard, to the extent it is relevant, is “the effect of the use upon the potential market for or
value of the copyrighted work.” Plaintiff further objects that the phrase “solely by virtue of . . .
the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.

8

Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and “dark archiving” of a digital version the works on Schedule A to the
HathiTrust Digital Library but without making such works available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such works available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such works available to others to view, print or download;
or (d) the availability of a digital version of the work for use by the blind or others with
disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted works, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with non-consumptive
research;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with full-text
searching;

9

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works due to the availability of such works for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such works as public domain or “orphan works”;

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of such work when stored,
distributed, sold and/or licensed in any format, including without limitation hardback, paperback,
and electronic and digital formats, and identify documents sufficient to substantiate the use of
such controls, by a) you; b) any publisher; c) any printer; d) any distributor; e) any warehouse; f)
any wholesaler; g) any retailer; h) any Internet host, website and/or online retailer in connection
with digital or electronic formats; and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiff’s works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiff’s claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s works without

10

Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and “dark archiving” of a digital version the
works on Schedule A to a “digital archive” in which such works are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with nonconsumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with full-text
searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or

14

expected to be generated in whole or in part by the use of such work by the blind or others with
disabilities that restrict their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.

15

RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 20, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

16

VERIFICATION
I, Angelo Loukakis, Executive Director for Plaintiff The Australian Society of Authors
Limited, have read the foregoing Responses to Interrogatory Numbers 1 through 7 and know
their contents. The responses provided therein are true to my knowledge, and as to those matters
stated upon information and belief, I believe them to be true. I verify under penalty of perjury
under the laws of the United States of America that the foregoing is true and correct. Executed
on April 20, 2012.

______________________________
Angelo Loukakis

FKKS: 453900.v1

19894.300

EXHIBIT D

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF THE AUTHORS’ LICENSING AND
COLLECTING SOCIETY TO DEFENDANTS’ SECOND SET OF INTERROGATORIES
AND REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff The Authors’ Licensing and Collecting Society Ltd. (“Plaintiff”) hereby submits,
pursuant to Rules 26, 34 and 36 of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3
of the Local Rules for the United States District Court for the Southern District of New York (the
“Local Rules”), Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories
and Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a
General Objection for emphasis or some other reason. The failure to include any General

sought by this request is likely to be in the possession or custody of third parties over whom
Plaintiff does not exercise control.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff will conduct a reasonable search and produce documents, if any, responsive to this
request relating to the works listed on Schedule A.
INTERROGATORY NO. 4: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, indicate whether that work has been distributed, pursuant to your
and/or that relevant member’s authorization, in digital, electronic or other machine-readable
format within the last ten years and, if so, identify for each such work a) the specific digital,
electronic or other machine-readable format(s) in which it was distributed; b) the number of
copies of the work distributed in such format(s); c) the publisher(s) of the work in such
format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Plaintiff objects that this Interrogatory on the ground that it is duplicative,
as Plaintiff already identified whether any of Plaintiff’s works on Schedule A have been
distributed in electronic format and the publisher of any such works. Moreover, Plaintiff objects
that the request to identify “the specific digital, electronic or other machine-readable format” is
vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that neither work on Schedule A has been distributed, pursuant to the relevant
member’s authorization, in digital, electronic or other machine-readable format at any time since
2001.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity any alleged harm you and/or your relevant
member have suffered or will suffer arising solely by virtue of each of the following, and
identify all documents related to the same: a) the inclusion of the work in Defendants’ digital
archives; b) the availability of a digital version of the work for use purely in connection with
non-consumptive research; c) the availability of a digital version of the work for use purely in
connection with full-text searching; d) the availability of a digital version of the work for use by
the blind or others with disabilities that restrict their use of standard printed works.

7

Plaintiff objects to this Interrogatory on the ground that it is impossible to predict, and
therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of Defendants’
various unauthorized uses of Plaintiff’s works. In addition, to the extent this Interrogatory is
being used in connection with Defendants’ fair use defense under 17 U.S.C. § 107, the correct
standard, to the extent it is relevant, is “the effect of the use upon the potential market for or
value of the copyrighted work.” Plaintiff further objects that the phrase “solely by virtue of . . .
the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and “dark archiving” of a digital version the works on Schedule A to the
HathiTrust Digital Library but without making such works available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such works available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such works available to others to view, print or download;
or (d) the availability of a digital version of the work for use by the blind or others with
disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted works, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for inclusion in a digital archive for preservation
purposes;

8

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with non-consumptive
research;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works due to the availability of such works for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such works as public domain or “orphan works”;

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of such work when stored,
distributed, sold and/or licensed in any format, including without limitation hardback, paperback,
and electronic and digital formats, and identify documents sufficient to substantiate the use of

9

interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and “dark archiving” of a digital version the
works on Schedule A to a “digital archive” in which such works are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with nonconsumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with full-text
searching.

13

RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work by the blind or others with
disabilities that restrict their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.

14

RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 20, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

15

VERIFICATION
I, Owen Atkinson, Chief Executive for Plaintiff the Authors’ Licensing and Collecting
Society Ltd., have read the foregoing Responses to Interrogatory Numbers 1 through 7 and know
their contents. The responses provided therein are true to my knowledge, and as to those matters
stated upon information and belief, I believe them to be true. I verify under penalty of perjury
under the laws of the United States of America that the foregoing is true and correct. Executed
on April 20 2012.
,

Owen Atkinson

FKKS: 453902.vl

19894300

EXHIBIT E

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF THE WRITERS’ UNION OF
CANADA TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND
REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff The Writers’ Union of Canada (“Plaintiff”) hereby submits, pursuant to Rules
26, 34 and 36 of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules
for the United States District Court for the Southern District of New York (the “Local Rules”),
Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories and Requests
for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a
General Objection for emphasis or some other reason. The failure to include any General

format within the last ten years and, if so, identify for each such work a) the specific digital,
electronic or other machine-readable format(s) in which it was distributed; b) the number of
copies of the work distributed in such format(s); c) the publisher(s) of the work in such
format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Plaintiff objects that this Interrogatory on the ground that it is duplicative,
as Plaintiff already identified whether any of Plaintiff’s works on Schedule A have been
distributed in electronic format and the publisher of any such works. Moreover, Plaintiff objects
that the request to identify “the specific digital, electronic or other machine-readable format” is
vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that portions of FOLKLORE OF CANADA have been distributed, pursuant to
Plaintiff’s authorization, in digital, electronic or other machine-readable format at any time since
2001. Plaintiff will conduct a reasonable search and produce documents relating to the
distribution of this work in digital format.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity any alleged harm you and/or your relevant
member have suffered or will suffer arising solely by virtue of each of the following, and
identify all documents related to the same: a) the inclusion of the work in Defendants’ digital
archives; b) the availability of a digital version of the work for use purely in connection with
non-consumptive research; c) the availability of a digital version of the work for use purely in
connection with full-text searching; d) the availability of a digital version of the work for use by
the blind or others with disabilities that restrict their use of standard printed works.
Plaintiff objects to this Interrogatory on the ground that it is impossible to predict, and
therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of Defendants’
various unauthorized uses of Plaintiff’s works. In addition, to the extent this Interrogatory is
being used in connection with Defendants’ fair use defense under 17 U.S.C. § 107, the correct
standard, to the extent it is relevant, is “the effect of the use upon the potential market for or

8

value of the copyrighted work.” Plaintiff further objects that the phrase “solely by virtue of . . .
the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and “dark archiving” of a digital version the works on Schedule A to the
HathiTrust Digital Library but without making such works available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such works available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such works available to others to view, print or download;
or (d) the availability of a digital version of the work for use by the blind or others with
disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted works, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with non-consumptive
research;

9

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted works due to the availability of such works for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such works as public domain or “orphan works”;

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of such work when stored,
distributed, sold and/or licensed in any format, including without limitation hardback, paperback,
and electronic and digital formats, and identify documents sufficient to substantiate the use of
such controls, by a) you; b) any publisher; c) any printer; d) any distributor; e) any warehouse; f)
any wholesaler; g) any retailer; h) any Internet host, website and/or online retailer in connection
with digital or electronic formats; and/or i) any purchaser of such work.

10

objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and “dark archiving” of a digital version the
works on Schedule A to a “digital archive” in which such works are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with nonconsumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with full-text
searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents concerning the works listed on Schedule A have been identified that are responsive to
this Request.

14

REQUEST NO. 11: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work by the blind or others with
disabilities that restrict their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s works in the United States “for use by blind
or other persons with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.

15

REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 20, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

16

VERIFICATION
I, Kelly Duffin, Executive Director for Plaintiff The Writers’ Union of Canada, have read
the foregoing Responses to Interrogatory Numbers 1 through 7 and know their contents. The
responses provided therein are true to my knowledge, and as to those matters stated upon
information and belief, I believe them to be true. I verify under penalty of perjury under the laws
of the United States of America that the foregoing is true and correct. Executed on April 20,
2012.

______________________________
Kelly Duffin

FKKS: 453896.v1

19894.300

EXHIBIT F

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF TROND ANDREASSEN
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Trond Andreassen (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36
of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the
United States District Court for the Southern District of New York (the “Local Rules”),
Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories and Second Set
of Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a

INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §
107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the
HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or
download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.

7

With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

8

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the
information sought by this Interrogatory is in the possession or custody or third parties over
whom Plaintiff does not exercise control.
INTERROGATORY NO. 7: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls, used to prevent
and/or detect unauthorized access to printed or electronic works, that you have requested in any
licensing, publishing distribution and/or other agreements related to such work, and identify all
documents related to such requests.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the

9

documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the use of such work in connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work in connection with full-text searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.

12

REQUEST NO. 11: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work by the blind or others with disabilities that restrict their
use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.

13

REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 10, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

14

VERIFICATION
I, Trond Andreassen, have read the foregoing Responses to Interrogatory Numbers 1
through 7 and know their contents. The responses provided therein are true to my knowledge,
and as to those matters stated upon information and belief, I believe them to be true. I verify
under penalty of perjury under the laws of the United States of America that the foregoing is true
and correct. Executed on April 8, 2012.

Trond Andreassen

EXHIBIT G

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF PAT CUMMINGS
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Pat Cummings (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36 of
the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the United
States District Court for the Southern District of New York (the “Local Rules”), Plaintiff’s
objections and responses to Defendants’ Second Set of Interrogatories and Second Set of
Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a

format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Plaintiff objects that this Interrogatory on the ground that it is duplicative,
as Plaintiff already identified whether any of Plaintiff’s works on Schedule A have been
distributed in electronic format and the publisher of any such works. Moreover, Plaintiff objects
that the request to identify “the specific digital, electronic or other machine-readable format” is
vague and ambiguous. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff identifies the following as work(s) on Schedule A that have been
distributed, pursuant to Plaintiff’s authorization, in digital, electronic or other machine-readable
format at any time since 2001:
JIMMY LEE DID IT
Plaintiff will conduct a reasonable search and produce documents, if any, concerning
royalties generated from distribution of the work(s) in electronic format.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §
107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.

7

Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the
HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or
download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other

8

technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the

9

REQUEST NO. 6: All documents concerning any physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of any work listed on Schedule A
when stored, distributed, sold and/or licensed in any format, including without limitation
hardback, paperback,, and electronic and digital formats by any person or entity, including
without limitation you and any publisher; printer; distributor; warehouse, wholesaler, retailer,
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or any purchaser of such work.
RESPONSE: Plaintiff objects to this Request on the same grounds as set forth in
response to Interrogatory No. 6.
REQUEST NO. 7: All documents concerning the existence or non-existence of a specific
market or potential market for the digitization and further reproduction, distribution and/or
display of printed works for the purpose of a) electronic archiving; b) non-consumptive research;
c) full-text searching; and/or d) use by the blind or others with disabilities that restrict their use
of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be

12

generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the use of such work in connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work in connection with full-text searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work by the blind or others with disabilities that restrict their
use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).

13

REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 10, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

14

VERIFICATION
I, Pat Cummings, have read the foregoing Responses to Interrogatory Numbers 1 through
7 and know their contents. The responses provided therein are true to my knowledge, and as to
those matters stated upon information and belief, I believe them to be true. I verify under
penalty of perjury under the laws of the United States of America that the foregoing is true and
correct. Executed on April 5, 2012.

______________________________
Pat Cummings

FKKS: 453772.v1

19894.300

EXHIBIT H

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF ERIK GRUNDSTRÖM
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Erik Grundström (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36
of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the
United States District Court for the Southern District of New York (the “Local Rules”),
Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories and Second Set
of Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a

INTERROGATORY NO. 4: For each work, if any, listed on Schedule A, indicate whether that
work has been distributed, pursuant to your authorization, in digital, electronic or other machinereadable format at any time since 2001 and, if so, identify for each such work a) the specific
digital, electronic or other machine-readable format(s) in which it was distributed; b) the number
of copies of the work distributed in such format(s); c) the publisher(s) of the work in such
format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Plaintiff objects that this Interrogatory on the ground that it is duplicative,
as Plaintiff already identified whether any of Plaintiff’s works on Schedule A have been
distributed in electronic format and the publisher of any such works. Moreover, Plaintiff objects
that the request to identify “the specific digital, electronic or other machine-readable format” is
vague and ambiguous. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff identifies no works on Schedule A that have been distributed, pursuant to
Plaintiff’s authorization, in digital, electronic or other machine-readable format at any time since
2001..
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §
107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.

7

Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the
HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or
download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other

8

technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the

9

REQUEST NO. 6: All documents concerning any physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of any work listed on Schedule A
when stored, distributed, sold and/or licensed in any format, including without limitation
hardback, paperback,, and electronic and digital formats by any person or entity, including
without limitation you and any publisher; printer; distributor; warehouse, wholesaler, retailer,
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or any purchaser of such work.
RESPONSE: Plaintiff objects to this Request on the same grounds as set forth in
response to Interrogatory No. 6.
REQUEST NO. 7: All documents concerning the existence or non-existence of a specific
market or potential market for the digitization and further reproduction, distribution and/or
display of printed works for the purpose of a) electronic archiving; b) non-consumptive research;
c) full-text searching; and/or d) use by the blind or others with disabilities that restrict their use
of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be

12

generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the use of such work in connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work in connection with full-text searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work by the blind or others with disabilities that restrict their
use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).

13

REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 10, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

14

EXHIBIT I

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF ANGELO LOUKAKIS
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Angelo Loukakis (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36
of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the
United States District Court for the Southern District of New York (the “Local Rules”),
Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories and Second Set
of Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a

INTERROGATORY NO. 4: For each work, if any, listed on Schedule A, indicate whether that
work has been distributed, pursuant to your authorization, in digital, electronic or other machinereadable format at any time since 2001 and, if so, identify for each such work a) the specific
digital, electronic or other machine-readable format(s) in which it was distributed; b) the number
of copies of the work distributed in such format(s); c) the publisher(s) of the work in such
format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Plaintiff objects that this Interrogatory on the ground that it is duplicative,
as Plaintiff already identified whether any of Plaintiff’s works on Schedule A have been
distributed in electronic format and the publisher of any such works. Moreover, Plaintiff objects
that the request to identify “the specific digital, electronic or other machine-readable format” is
vague and ambiguous. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff identifies no works on Schedule A that have been distributed, pursuant to
Plaintiff’s authorization, in digital, electronic or other machine-readable format at any time since
2001..
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §
107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.

7

Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the
HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or
download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other

8

technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the

9

REQUEST NO. 6: All documents concerning any physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of any work listed on Schedule A
when stored, distributed, sold and/or licensed in any format, including without limitation
hardback, paperback,, and electronic and digital formats by any person or entity, including
without limitation you and any publisher; printer; distributor; warehouse, wholesaler, retailer,
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or any purchaser of such work.
RESPONSE: Plaintiff objects to this Request on the same grounds as set forth in
response to Interrogatory No. 6.
REQUEST NO. 7: All documents concerning the existence or non-existence of a specific
market or potential market for the digitization and further reproduction, distribution and/or
display of printed works for the purpose of a) electronic archiving; b) non-consumptive research;
c) full-text searching; and/or d) use by the blind or others with disabilities that restrict their use
of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be

12

generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the use of such work in connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work in connection with full-text searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work by the blind or others with disabilities that restrict their
use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).

13

REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 10, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

14

VERIFICATION
I, Angelo Loukakis, have read the foregoing Responses to Interrogatory Numbers 1
through 7 and know their contents. The responses provided therein are true to my knowledge,
and as to those matters stated upon information and belief, I believe them to be true. I verify
under penalty of perjury under the laws of the United States of America that the foregoing is true
and correct. Executed on April 9, 2012.

______________________________
Angelo Loukakis

FKKS: 453777.v1

19894.300

EXHIBIT J

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF HELGE RØNNING
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Helge Rønning (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36 of
the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the United
States District Court for the Southern District of New York (the “Local Rules”), Plaintiff’s
objections and responses to Defendants’ Second Set of Interrogatories and Second Set of
Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a

Plaintiff’s authorization, in digital, electronic or other machine-readable format at any time since
2001.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §
107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the
HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or

7

download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

8

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the
information sought by this Interrogatory is in the possession or custody or third parties over
whom Plaintiff does not exercise control.
INTERROGATORY NO. 7: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls, used to prevent
and/or detect unauthorized access to printed or electronic works, that you have requested in any
licensing, publishing distribution and/or other agreements related to such work, and identify all
documents related to such requests.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without

9

documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the use of such work in connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work in connection with full-text searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.

12

REQUEST NO. 11: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work by the blind or others with disabilities that restrict their
use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.

13

REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 10, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

14

EXHIBIT K

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF ROXANA ROBINSON
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Roxana Robinson (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36
of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the
United States District Court for the Southern District of New York (the “Local Rules”),
Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories and Second Set
of Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a

distributed, pursuant to Plaintiff’s authorization, in digital, electronic or other machine-readable
format at any time since 2001:
A PERFECT STRANGER
SWEETWATER
Plaintiff will conduct a reasonable search and produce documents, if any, concerning
royalties generated from distribution of the work(s) in electronic format.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §
107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the
HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or

7

download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or
download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

8

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the
information sought by this Interrogatory is in the possession or custody or third parties over
whom Plaintiff does not exercise control.
INTERROGATORY NO. 7: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls, used to prevent
and/or detect unauthorized access to printed or electronic works, that you have requested in any
licensing, publishing distribution and/or other agreements related to such work, and identify all
documents related to such requests.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s

9

display of printed works for the purpose of a) electronic archiving; b) non-consumptive research;
c) full-text searching; and/or d) use by the blind or others with disabilities that restrict their use
of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the use of such work in connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.

12

REQUEST NO. 10: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work in connection with full-text searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work by the blind or others with disabilities that restrict their
use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.

13

REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
March 28, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

14

VERIFICATION
I, Roxana Robinson, have read the foregoing responses to Interrogatory Numbers

1

through 7 and know their contents. The responses provided therein are true to my knowledge,
and as to those matters stated upon information and belief,

I believe them to be true. I verifu

under penalty of perjury under the laws of the United States of America that the foregoing is true
and correct. Executed on March

2^

,2012.

6bi-u\

EXHIBIT L

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF ANDRÉ ROY
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff André Roy (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36 of the
Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the United
States District Court for the Southern District of New York (the “Local Rules”), Plaintiff’s
objections and responses to Defendants’ Second Set of Interrogatories and Second Set of
Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a

INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §
107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the
HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or
download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.

7

With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

8

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the
information sought by this Interrogatory is in the possession or custody or third parties over
whom Plaintiff does not exercise control.
INTERROGATORY NO. 7: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls, used to prevent
and/or detect unauthorized access to printed or electronic works, that you have requested in any
licensing, publishing distribution and/or other agreements related to such work, and identify all
documents related to such requests.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the

9

searching; and/or d) use by the blind or others with disabilities that restrict
their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A, documents
sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the inclusion of such work in
a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A, documents
sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in
connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.

12

REQUEST NO. 10: For each work, if any, listed on Schedule A, documents
sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in
connection with full-text searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A, documents
sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work by the
blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the
HathiTrust and/or Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.

13

REQUEST NO. 13: All documents concerning the effect, if any, the
HathiTrust has had or is expected to have on the value, revenue or earnings
associated with printed and/or electronic written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to
Defendants’ Second Set of Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 10, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

14

EXHIBIT M

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF J.R. SALAMANCA
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff J.R. Salamanca (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36 of
the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the United
States District Court for the Southern District of New York (the “Local Rules”), Plaintiff’s
objections and responses to Defendants’ Second Set of Interrogatories and Second Set of
Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a

concerning royalties generated from distribution of the work(s) in electronic format, but notes
that statements for works only recently released for sale may not yet be available.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §
107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the
HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or

7

download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

8

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the
information sought by this Interrogatory is in the possession or custody or third parties over
whom Plaintiff does not exercise control.
INTERROGATORY NO. 7: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls, used to prevent
and/or detect unauthorized access to printed or electronic works, that you have requested in any
licensing, publishing distribution and/or other agreements related to such work, and identify all
documents related to such requests.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without

9

RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the use of such work in connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work in connection with full-text searching.

12

RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work by the blind or others with disabilities that restrict their
use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.

13

RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 10, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

14

20

EXHIBIT N

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF JAMES SHAPIRO
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff James Shapiro (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36 of
the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the United
States District Court for the Southern District of New York (the “Local Rules”), Plaintiff’s
objections and responses to Defendants’ Second Set of Interrogatories and Second Set of
Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a

INTERROGATORY NO. 4: For each work, if any, listed on Schedule A, indicate whether that
work has been distributed, pursuant to your authorization, in digital, electronic or other machinereadable format at any time since 2001 and, if so, identify for each such work a) the specific
digital, electronic or other machine-readable format(s) in which it was distributed; b) the number
of copies of the work distributed in such format(s); c) the publisher(s) of the work in such
format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Plaintiff objects that this Interrogatory on the ground that it is duplicative,
as Plaintiff already identified whether any of Plaintiff’s works on Schedule A have been
distributed in electronic format and the publisher of any such works. Moreover, Plaintiff objects
that the request to identify “the specific digital, electronic or other machine-readable format” is
vague and ambiguous. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff identifies the following as work(s) on Schedule A that have been
distributed, pursuant to Plaintiff’s authorization, in digital, electronic or other machine-readable
format at any time since 2001:
OBERAMMERGAU
Plaintiff will conduct a reasonable search and produce documents, if any, concerning
royalties generated from distribution of the work(s) in electronic format.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §

7

107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the
HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or
download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

8

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s

9

REQUEST NO. 8: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the use of such work in connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work in connection with full-text searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work by the blind or others with disabilities that restrict their
use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121

13

specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.

14

Dated: New York, New York
April 10, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

15

20

EXHIBIT O

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF DANIELE SIMPSON
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Daniele Simpson (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36
of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the
United States District Court for the Southern District of New York (the “Local Rules”),
Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories and Second Set
of Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a

INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §
107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the
HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or
download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.

7

With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

8

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the
information sought by this Interrogatory is in the possession or custody or third parties over
whom Plaintiff does not exercise control.
INTERROGATORY NO. 7: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls, used to prevent
and/or detect unauthorized access to printed or electronic works, that you have requested in any
licensing, publishing distribution and/or other agreements related to such work, and identify all
documents related to such requests.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the

9

documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the use of such work in connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work in connection with full-text searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.

12

REQUEST NO. 11: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work by the blind or others with disabilities that restrict their
use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.

13

REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 10, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

14

EXHIBIT P

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF T.J. STILES
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff T.J. Stiles (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36 of the
Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the United
States District Court for the Southern District of New York (the “Local Rules”), Plaintiff’s
objections and responses to Defendants’ Second Set of Interrogatories and Second Set of
Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a

INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §
107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the
HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or
download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.

7

With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

8

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the
information sought by this Interrogatory is in the possession or custody or third parties over
whom Plaintiff does not exercise control.
INTERROGATORY NO. 7: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls, used to prevent
and/or detect unauthorized access to printed or electronic works, that you have requested in any
licensing, publishing distribution and/or other agreements related to such work, and identify all
documents related to such requests.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the

9

documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.
REQUEST NO. 9: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the use of such work in connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work in connection with full-text searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.

12

REQUEST NO. 11: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work by the blind or others with disabilities that restrict their
use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.

13

REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 10, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

14

VERIFICATION
I, T.J. Stiles, have read the foregoing Responses to Interrogatory Numbers 1 through 7
and know their contents. The responses provided therein are true to my knowledge, and as to
those matters stated upon information and belief, I believe them to be true. I verify under
penalty of perjury under the laws of the United States of America that the foregoing is true and
20
correct. Executed on April ___, 2012.

______________________________
T.J. Stiles

FKKS: 453776.v1

19894.300

EXHIBIT Q

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF FAY WELDON
TO DEFENDANTS’ SECOND SET OF INTERROGATORIES AND REQUESTS
FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Fay Weldon (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36 of the
Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the United
States District Court for the Southern District of New York (the “Local Rules”), Plaintiff’s
objections and responses to Defendants’ Second Set of Interrogatories and Second Set of
Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a

AUTO DA FAY
BIG WOMEN
MANTRAPPED
NOTHING TO WEAR AND NOWHERE TO HIDE
PUFFBALL
REMEMBER ME
RHODE ISLAND BLUES
SHE MAY NOT LEAVE
SPLITTING
THE BULGARI CONNECTION
WATCHING ME, WATCHING YOU
WORST FEARS
Plaintiff will conduct a reasonable search and produce documents, if any, concerning
royalties generated from distribution of these works in electronic format.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, identify with
specificity any alleged harm you have suffered or will suffer arising solely by virtue of each of
the following, and identify all documents related to the same: a) the inclusion of the work in
Defendants’ digital archives; b) the availability of a digital version of the work for use purely in
connection with non-consumptive research; c) the availability of a digital version of the work for
use purely in connection with full-text searching; d) the availability of a digital version of the
work for use by the blind or others with disabilities that restrict their use of standard printed
works.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that it is impossible to
predict, and therefore to identify, the harm that Plaintiff “will suffer” in the future as a result of
Defendants’ various unauthorized uses of Plaintiff’s work(s). In addition, to the extent this
Interrogatory is being used in connection with Defendants’ fair use defense under 17 U.S.C. §
107, the correct standard, to the extent it is relevant, is “the effect of the use upon the potential
market for or value of the copyrighted work.” Plaintiff further objects that the phrase “solely by
virtue of . . . the inclusion of the work in Defendants’ digital archives” is vague and ambiguous.
Subject to and without waiving the foregoing objections or any General Objections,
Plaintiff responds that to date, Plaintiff has not identified any specific, quantifiable past harm, or
any documents relating to any such past harm, that Plaintiff has suffered solely by virtue of (a)
Defendants’ uploading and archiving of a digital version the work(s) on Schedule A to the

7

HathiTrust Digital Library but without making such work(s) available to others to view, print or
download, (b) the availability of a digital version of the work for use purely in connection with
non-consumptive research but without making such work(s) available to others to view, print or
download; (c) the availability of a digital version of the work for use purely in connection with
full-text searching but without making such work(s) available to others to view, print or
download; or (d) the availability of a digital version of the work for use by the blind or others
with disabilities that restrict their use of standard printed works.
With respect to the effect of Defendants’ aforementioned uses upon the potential market
for or value of the copyrighted work, Plaintiff identifies the following:
•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for inclusion in a digital archive for preservation
purposes;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with nonconsumptive research;

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) for use purely in connection with full-text
searching;

•

Loss or potential loss of revenue from sale or licensing of derivative uses,
including derivative uses made possible by artificial intelligence and other
technologies to create translations, anthologies, abridgments and versions suited
for new and emerging platforms and devices;

8

•

Loss or potential loss of revenue from sale or licensing of digital copies of
Plaintiff’s copyrighted work(s) due to the availability of such work(s) for others to
view, print and download on Defendants’ websites as a result of the accidental or
mistaken identification of such work(s) as public domain or “orphan works”;

•

Exposure of Plaintiff’s copyrighted works to virtually unlimited piracy due to
breaches in security;

•

Loss or potential loss of control over the reproduction and distribution of
Plaintiff’s copyrighted works; and

•

Loss or potential loss of revenue from sale and/or licensing of hardcopies and
digital copies of Plaintiff’s copyrighted works to libraries and/or archives.

INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls used to ensure the
safety and security of each such work when stored, distributed, sold and/or licensed in any
format, including without limitation hardback, paperback, and electronic digital formats, and
identify documents sufficient to substantiate the use of such controls, by a) you; b) any publisher;
c) any printer; d) any distributor; e) any warehouse; f) any wholesaler; g) any retailer; h) any
Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or i) any purchaser of such work.
RESPONSE: Plaintiff objects to this Interrogatory on the ground that the security of
Plaintiffs’ works that are or have been stored, distributed, sold and/or licensed with Plaintiff’s
authorization is relevant to neither Plaintiffs’ claims nor Defendants’ valid defenses, which
concern Defendants’ digitization, reproduction and distribution of Plaintiff’s work(s) without
Plaintiff’s authorization, and are therefore beyond the scope of discovery pursuant to Fed. R.
Civ. P. 26. Plaintiff further objects that this Interrogatory on the ground that most of the
information sought by this Interrogatory is in the possession or custody or third parties over
whom Plaintiff does not exercise control.
INTERROGATORY NO. 7: For each work, if any, listed on Schedule A, identify with
specificity all physical, logical/technical, administrative and/or other controls, used to prevent

9

Internet host, website and/or online retailer in connection with digital or electronic formats;
and/or any purchaser of such work.
RESPONSE: Plaintiff objects to this Request on the same grounds as set forth in
response to Interrogatory No. 6.
REQUEST NO. 7: All documents concerning the existence or non-existence of a specific
market or potential market for the digitization and further reproduction, distribution and/or
display of printed works for the purpose of a) electronic archiving; b) non-consumptive research;
c) full-text searching; and/or d) use by the blind or others with disabilities that restrict their use
of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 8: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the inclusion of such work in a digital archive.
RESPONSE: Plaintiff objects to this Request on the ground that the phrase “inclusion of
such work in a digital archive” is undefined, vague and ambiguous. Subject to and without
waiving the foregoing objection or any General Objections, to date Plaintiff has identified no
documents concerning revenues or other earnings of any kind generated or expected to be
generated in whole or in part by the mere uploading and archiving of a digital version the
work(s) on Schedule A to a “digital archive” in which such work(s) are not made available for
purchase, viewing, printing or downloading.

12

REQUEST NO. 9: For each work, if any, listed on Schedule A, documents sufficient to identify
any revenue or other earnings of any kind generated or expected to be generated in whole or in
part by the use of such work in connection with non-consumptive research.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 10: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work in connection with full-text searching.
RESPONSE: Subject to and without waiving any General Objections, to date no
documents have been identified that are responsive to this Request.
REQUEST NO. 11: For each work, if any, listed on Schedule A, documents sufficient to
identify any revenue or other earnings of any kind generated or expected to be generated in
whole or in part by the use of such work by the blind or others with disabilities that restrict their
use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is beyond the scope
of discovery in this lawsuit. Subject to and without waiving the foregoing objection or any
General Objections, Plaintiff responds that by tradition and industry practice, authors generally
do not receive royalties for the licensing and sale of works distributed in specialized formats
exclusively for use by the blind or other persons with disabilities. Furthermore, 17 U.S.C. § 121
specifically permits the reproduction of copyrighted literary works by one or more “authorized
entit[ies]” in “specialized formats exclusively for use by blind or other persons with disabilities.”
Accordingly, for the purposes of this litigation, Plaintiff is not claiming that any revenue or other
earnings of any kind were generated or are expected to be generated in whole or part by the
reproduction or distribution of copies of Plaintiff’s work(s) “for use by blind or other persons
with disabilities” (as defined in 17 U.S.C. § 121(d)(1)).
REQUEST NO. 12: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.

13

RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 13: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 14: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, any such
documents will be produced.
Dated: New York, New York
April 10, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

14

EXHIBIT R

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF UNEQ TO
DEFENDANTS’ SECOND SET OF INTERROGATORIES AND
REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Union des Écrivaines et des Écrivains Québécois (Quebec Union of Writers)
(“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and 36 of the Federal Rules of Civil
Procedure and Rules 26.3 and 33.3 of the Local Rules for the United States District Court for the
Southern District of New York (the “Local Rules”), Plaintiff’s objections and responses to
Defendants’ Second Set of Interrogatories and Requests for the Production of Documents
(“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a

INTERROGATORY NO. 2: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify all author royalties and/or other income generated by such
work from 2001 to the present and itemized by source, as well as documents sufficient to
substantiate such royalties and/or income.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff
responds that no works were listed on Schedule A.
INTERROGATORY NO. 3: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify a) the number of hardback and/or paperback copies printed in
each year from 2001 to the present; b) the number of hardback and/or paperback copies
remaining in the inventory of any publisher or publisher’s agent at the end of each year from
2001 to the present; and c) the number of hardback and/or paperback copies remaining in the
inventory of any wholesaler or wholesaler’s agent at the end of each year from 2001 to the
present; d) the number of hardback and/or paperback copies remaining in the inventory of any
retailer or retailer’s agent at the end of each year from 2001 to the present; e) the number of
hardback and/or paperback copies returned by any retailer for each year from 2001 to the
present; and f) documents sufficient to substantiate such numbers.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff
responds that no works were listed on Schedule A.
INTERROGATORY NO. 4: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, indicate whether that work has been distributed, pursuant to your
and/or that relevant member’s authorization, in digital, electronic or other machine-readable
format within the last ten years and, if so, identify for each such work a) the specific digital,
electronic or other machine-readable format(s) in which it was distributed; b) the number of
copies of the work distributed in such format(s); c) the publisher(s) of the work in such
format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity any alleged harm you and/or your relevant
member have suffered or will suffer arising solely by virtue of each of the following, and
identify all documents related to the same: a) the inclusion of the work in Defendants’ digital
archives; b) the availability of a digital version of the work for use purely in connection with
non-consumptive research; c) the availability of a digital version of the work for use purely in
connection with full-text searching; d) the availability of a digital version of the work for use by
the blind or others with disabilities that restrict their use of standard printed works.

6

RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of such work when stored,
distributed, sold and/or licensed in any format, including without limitation hardback, paperback,
and electronic and digital formats, and identify documents sufficient to substantiate the use of
such controls, by a) you; b) any publisher; c) any printer; d) any distributor; e) any warehouse; f)
any wholesaler; g) any retailer; h) any Internet host, website and/or online retailer in connection
with digital or electronic formats; and/or i) any purchaser of such work.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
INTERROGATORY NO. 7: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls, used to prevent and/or detect unauthorized access to printed or electronic
works, that you have requested in any licensing, publishing, distribution and/or other agreements
related to such work, and identify all documents related to such requests.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
SPECIFIC OBJECTIONS AND RESPONSES TO DOCUMENT REQUEST
REQUEST NO. 1: For each work, if any, listed on Schedule A to your Objections and
Responses to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents (“Schedule A”), and for each work for which one or more of your members is a legal
or beneficial owner of a copyright or an exclusive right under a copyright that you claim has
been infringed by one or more of the Defendants (“Relevant Member Work”), documents
sufficient to identify whether that work is or has ever been part of any effort to reprint out-ofprint works in any form, including without limitation the Author’s Guild’s “BackinPrint.com”
service.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 1: All agreements with and/or related to iUniverse.com, or any other service
offering per-order printing in a hardback, paperback or electronic format, that involve any work
listed on Schedule A or any Relevant Member Work.

7

research; c) full-text searching; and/or d) use by the blind or others with disabilities that restrict
their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 4: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the inclusion of such work in a digital archive.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 5: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with nonconsumptive research.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 6: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with full-text
searching.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.

9

REQUEST NO. 7: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work by the blind or others with
disabilities that restrict their use of standard printed works.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 8: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 9: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 10: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, Plaintiff responds
that no such documents have been identified.

10

Dated: New York, New York
April 20, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

11

EXHIBIT S

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF SFF TO
DEFENDANTS’ SECOND SET OF INTERROGATORIES AND
REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Sveriges Författarförbund (The Swedish Writers’ Union) (“Plaintiff”) hereby
submits, pursuant to Rules 26, 34 and 36 of the Federal Rules of Civil Procedure and Rules 26.3
and 33.3 of the Local Rules for the United States District Court for the Southern District of New
York (the “Local Rules”), Plaintiff’s objections and responses to Defendants’ Second Set of
Interrogatories and Requests for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a
General Objection for emphasis or some other reason. The failure to include any General

INTERROGATORY NO. 2: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify all author royalties and/or other income generated by such
work from 2001 to the present and itemized by source, as well as documents sufficient to
substantiate such royalties and/or income.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff
responds that no works were listed on Schedule A.
INTERROGATORY NO. 3: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify a) the number of hardback and/or paperback copies printed in
each year from 2001 to the present; b) the number of hardback and/or paperback copies
remaining in the inventory of any publisher or publisher’s agent at the end of each year from
2001 to the present; and c) the number of hardback and/or paperback copies remaining in the
inventory of any wholesaler or wholesaler’s agent at the end of each year from 2001 to the
present; d) the number of hardback and/or paperback copies remaining in the inventory of any
retailer or retailer’s agent at the end of each year from 2001 to the present; e) the number of
hardback and/or paperback copies returned by any retailer for each year from 2001 to the
present; and f) documents sufficient to substantiate such numbers.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff
responds that no works were listed on Schedule A.
INTERROGATORY NO. 4: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, indicate whether that work has been distributed, pursuant to your
and/or that relevant member’s authorization, in digital, electronic or other machine-readable
format within the last ten years and, if so, identify for each such work a) the specific digital,
electronic or other machine-readable format(s) in which it was distributed; b) the number of
copies of the work distributed in such format(s); c) the publisher(s) of the work in such
format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity any alleged harm you and/or your relevant
member have suffered or will suffer arising solely by virtue of each of the following, and
identify all documents related to the same: a) the inclusion of the work in Defendants’ digital
archives; b) the availability of a digital version of the work for use purely in connection with
non-consumptive research; c) the availability of a digital version of the work for use purely in
connection with full-text searching; d) the availability of a digital version of the work for use by
the blind or others with disabilities that restrict their use of standard printed works.

6

RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of such work when stored,
distributed, sold and/or licensed in any format, including without limitation hardback, paperback,
and electronic and digital formats, and identify documents sufficient to substantiate the use of
such controls, by a) you; b) any publisher; c) any printer; d) any distributor; e) any warehouse; f)
any wholesaler; g) any retailer; h) any Internet host, website and/or online retailer in connection
with digital or electronic formats; and/or i) any purchaser of such work.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
INTERROGATORY NO. 7: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls, used to prevent and/or detect unauthorized access to printed or electronic
works, that you have requested in any licensing, publishing, distribution and/or other agreements
related to such work, and identify all documents related to such requests.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
SPECIFIC OBJECTIONS AND RESPONSES TO DOCUMENT REQUEST
REQUEST NO. 1: For each work, if any, listed on Schedule A to your Objections and
Responses to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents (“Schedule A”), and for each work for which one or more of your members is a legal
or beneficial owner of a copyright or an exclusive right under a copyright that you claim has
been infringed by one or more of the Defendants (“Relevant Member Work”), documents
sufficient to identify whether that work is or has ever been part of any effort to reprint out-ofprint works in any form, including without limitation the Author’s Guild’s “BackinPrint.com”
service.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 1: All agreements with and/or related to iUniverse.com, or any other service
offering per-order printing in a hardback, paperback or electronic format, that involve any work
listed on Schedule A or any Relevant Member Work.

7

research; c) full-text searching; and/or d) use by the blind or others with disabilities that restrict
their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 4: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the inclusion of such work in a digital archive.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 5: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with nonconsumptive research.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 6: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with full-text
searching.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.

9

REQUEST NO. 7: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work by the blind or others with
disabilities that restrict their use of standard printed works.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 8: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 9: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 10: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, Plaintiff responds
that no such documents have been identified.

10

Dated: New York, New York
April 20, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

11

20

EXHIBIT T

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
:
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF NFFO TO
DEFENDANTS’ SECOND SET OF INTERROGATORIES AND
REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Norsk faglitterær forfatter- og oversetterforening (The Norwegian Non-Fiction
Writers and Translators Association) (“Plaintiff”) hereby submits, pursuant to Rules 26, 34 and
36 of the Federal Rules of Civil Procedure and Rules 26.3 and 33.3 of the Local Rules for the
United States District Court for the Southern District of New York (the “Local Rules”),
Plaintiff’s objections and responses to Defendants’ Second Set of Interrogatories and Requests
for the Production of Documents (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a

INTERROGATORY NO. 2: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify all author royalties and/or other income generated by such
work from 2001 to the present and itemized by source, as well as documents sufficient to
substantiate such royalties and/or income.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff
responds that no works were listed on Schedule A.
INTERROGATORY NO. 3: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify a) the number of hardback and/or paperback copies printed in
each year from 2001 to the present; b) the number of hardback and/or paperback copies
remaining in the inventory of any publisher or publisher’s agent at the end of each year from
2001 to the present; and c) the number of hardback and/or paperback copies remaining in the
inventory of any wholesaler or wholesaler’s agent at the end of each year from 2001 to the
present; d) the number of hardback and/or paperback copies remaining in the inventory of any
retailer or retailer’s agent at the end of each year from 2001 to the present; e) the number of
hardback and/or paperback copies returned by any retailer for each year from 2001 to the
present; and f) documents sufficient to substantiate such numbers.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff
responds that no works were listed on Schedule A.
INTERROGATORY NO. 4: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, indicate whether that work has been distributed, pursuant to your
and/or that relevant member’s authorization, in digital, electronic or other machine-readable
format within the last ten years and, if so, identify for each such work a) the specific digital,
electronic or other machine-readable format(s) in which it was distributed; b) the number of
copies of the work distributed in such format(s); c) the publisher(s) of the work in such
format(s); and d) the specific royalties accruing to the author with respect to such distribution in
each such format.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
INTERROGATORY NO. 5: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity any alleged harm you and/or your relevant
member have suffered or will suffer arising solely by virtue of each of the following, and
identify all documents related to the same: a) the inclusion of the work in Defendants’ digital
archives; b) the availability of a digital version of the work for use purely in connection with
non-consumptive research; c) the availability of a digital version of the work for use purely in
connection with full-text searching; d) the availability of a digital version of the work for use by
the blind or others with disabilities that restrict their use of standard printed works.

6

RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
INTERROGATORY NO. 6: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls used to ensure the safety and security of such work when stored,
distributed, sold and/or licensed in any format, including without limitation hardback, paperback,
and electronic and digital formats, and identify documents sufficient to substantiate the use of
such controls, by a) you; b) any publisher; c) any printer; d) any distributor; e) any warehouse; f)
any wholesaler; g) any retailer; h) any Internet host, website and/or online retailer in connection
with digital or electronic formats; and/or i) any purchaser of such work.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
INTERROGATORY NO. 7: For each work, if any, listed on Schedule A, and for each
Relevant Member Work, identify with specificity all physical, logical/technical, administrative
and/or other controls, used to prevent and/or detect unauthorized access to printed or electronic
works, that you have requested in any licensing, publishing, distribution and/or other agreements
related to such work, and identify all documents related to such requests.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
SPECIFIC OBJECTIONS AND RESPONSES TO DOCUMENT REQUEST
REQUEST NO. 1: For each work, if any, listed on Schedule A to your Objections and
Responses to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents (“Schedule A”), and for each work for which one or more of your members is a legal
or beneficial owner of a copyright or an exclusive right under a copyright that you claim has
been infringed by one or more of the Defendants (“Relevant Member Work”), documents
sufficient to identify whether that work is or has ever been part of any effort to reprint out-ofprint works in any form, including without limitation the Author’s Guild’s “BackinPrint.com”
service.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 1: All agreements with and/or related to iUniverse.com, or any other service
offering per-order printing in a hardback, paperback or electronic format, that involve any work
listed on Schedule A or any Relevant Member Work.

7

research; c) full-text searching; and/or d) use by the blind or others with disabilities that restrict
their use of standard printed works.
RESPONSE: Plaintiff objects to this Request on the ground that it is vague, ambiguous,
overbroad and unduly burdensome in several respects. For example, the request to produce “[a]ll
documents concerning the . . . non-existence of a . . . potential market” for various uses of
“printed works” is unintelligible, and the term “electronic archiving” is undefined and could be
interpreted as encompassing retail electronic book distributors. The Request is further
objectionable in that it is not limited to documents relating to Plaintiff’s works, but to “printed
works” in general. Subject to and without waiving the foregoing objections or any General
Objections, Plaintiff will conduct a reasonable search and produce documents, if any, responsive
to this Request.
REQUEST NO. 4: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the inclusion of such work in a digital archive.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 5: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with nonconsumptive research.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 6: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work in connection with full-text
searching.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.

9

REQUEST NO. 7: For each work, if any, listed on Schedule A and for any Relevant Member
Work, documents sufficient to identify any revenue or other earnings of any kind generated or
expected to be generated in whole or in part by the use of such work by the blind or others with
disabilities that restrict their use of standard printed works.
RESPONSE: Subject to and without waiving any General Objections, Plaintiff responds
that no works were listed on Schedule A.
REQUEST NO. 8: All non-privileged documents concerning the HathiTrust and/or
Defendants’ alleged digitization of written works.
RESPONSE: Plaintiff objects to this Request on the ground that is overbroad and
unduly burdensome. Subject to and without waiving the foregoing objection or any General
Objections, Plaintiff will conduct a reasonable search and produce non-privileged documents, if
any, responsive to this Request.
REQUEST NO. 9: All documents concerning the effect, if any, the HathiTrust has had or is
expected to have on the value, revenue or earnings associated with printed and/or electronic
written works.
RESPONSE: Plaintiff objects to this Request on the grounds that it is vague,
ambiguous, overbroad and repetitive of prior requests, pursuant to which documents have been
or will be produced.
REQUEST NO. 10: All documents identified by you in response to Defendants’ Second Set of
Interrogatories.
RESPONSE: Subject to and without waiving the General Objections, Plaintiff responds
that no such documents have been identified.

10

Dated: New York, New York
April 20, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

11

20

EXHIBIT U

Page 1
1
2
3
4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------X
THE AUTHORS GUILD, INC., ET AL.,

5

Plaintiff,
Index no. 11 Civ. 6351 (HB)

6

VS.
7

HATHITRUST, et al.,
8

9

Defendants.
--------------------------------X

10
11

**C O N F I D E N T I A L**

12
13
14
15
16
17
18

DEPOSITION
OF
PAT CUMMINGS
Tuesday, May 22, 2012
1114 Avenue of the Americas
New York, New York

19
20
21

22

Reported by:
AYLETTE GONZALEZ, CLR
JOB NO. 49735

23
24
25

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877-702-9580

Page 2
1
2

DATE:

May 22, 2012

3

TIME:

9:57 a.m.

4
5
6

Deposition of PAT CUMMINGS, held at the

7

offices of KILPATRICK TOWNSEND & STOCKTON, LLP,

8

1114 Avenue of the Americas, New York, New

9

York,

10036, pursuant to NOTICE, before

10

AYLETTE GONZALEZ, a Certified LiveNote

11

Reporter and Notary Public of the State of

12

New York.

13
14
15
16
17
18
19
20
21
22
23
24
25

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Page 3
1
2

A P P E A R A N C E S:

3
4

KILPATRICK TOWNSEND & STOCKTON

5

Counsel for Defendant

6

1114 Avenue of the Americas

7

New York, New York

8

BY:

10036

JOSEPH PETERSEN, ESQ.

9
10
11
12

FRANKFURT KURNIT KLEIN & SELZ

13

Counsel for Plaintiff

14

488 Madison Avenue

15

New York, New York

16

BY:

10022

JEREMY GOLDMAN, ESQ.

17
18
19
20
21

ALSO PRESENT:
JAN CONSTANTINE, The Authors Guild, Inc.

22
23
24
25

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Page 4
1

CONFIDENTIAL-PAT CUMMINGS

2

P A T

3

witness, having been first duly sworn by a

4

Notary Public of the State of New York, was

5

examined and testified as follows:

6

EXAMINATION BY

7

MR. PETERSEN:

8
9
10

C U M M I N G S, called as a

Q.

name is Joe Petersen.

13
14
15
16

My

I'm counsel for the

libraries in the HathiTrust matter.

11
12

Good morning, Ms. Cummings.

Could you please state your name
and address for the record.
A.

Pat Cummings.

28 Tiffany Place,

Brooklyn, New York 11231.
Q.

And have you ever been deposed

before?

17

A.

No.

18

Q.

Let me give you a quick rundown on

19

the rules.

I'll be asking a series of

20

questions.

My goal isn't to trick you at all.

21

If you don't understand the question, please

22

let me know, and I'll rephrase the question.

23

Is that clear?

24

A.

Yes.

25

Q.

And just -- the Reporter is taking
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Page 19
1

CONFIDENTIAL-PAT CUMMINGS

2

libraries are currently doing.

3

in time, do you have any understanding of the

4

use made by the libraries with respect to the

5

digitized works in the HathiTrust Corpus?

6

MR. GOLDMAN:

7

lacks foundation.

8

A.

At this point

9
10

Object to the form;

I don't know what uses they're

making of it.
Q.

Do you have any knowledge as to

11

whether or not those -- your works are

12

available to someone who accesses the

13

HathiTrust Corpus?

14

in full text?

15

Are those works available

MR. GOLDMAN:

Object to the form.

16

A.

I don't know.

17

Q.

Have you ever used the HathiTrust

18

website?

19

A.

No.

20

Q.

Have you ever seen the HathiTrust

21

website?

22

A.

No.

23

Q.

Turning back in time to when

24

Mr. Aiken approached you concerning this

25

lawsuit, was there any discussion concerning
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CONFIDENTIAL-PAT CUMMINGS

2
3
4

Q.
item.

You say an extreme cherry-picked

What do you mean by that?
A.

I mean that if you have a problem

5

with somebody taking your work, to say that

6

you're depriving blind people seemed to come

7

out of -- not left field, but seemed to be an

8

extreme situation that was not the intent of

9

the suit.

And to the best of my memory, our

10

discussion was about how to present the

11

Guild's position publicly so that we were

12

representing ourselves in the manner that we

13

felt, you know, our issues to be, and not to

14

be defined.

15

Q.

Would you agree with me that it's

16

beneficial to individuals with disabilities to

17

have access to the works that have been

18

digitized as part of the HathiTrust project?

19

A.

20

No.
MR. GOLDMAN:

Objection to the

21

form.

22

A.

No.

23

Q.

So, you do not believe the print

24
25

disabled should have access to those works?
MR. GOLDMAN:

Objection to the

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2

form.

3

A.

No.

4

Q.

I'm going to mark, as PC-5, a

5

document entitled, "Objections And Responses

6

of Plaintiff Pat Cummings To Defendants' First

7

Set Of Interrogatories And Request For The

8

Production of Documents."

9

(Exhibit PC-5, document entitled

10

"Objections And Responses Of Plaintiff

11

Pat Cummings to Defendants' First Set

12

Of Interrogatories And Requests For

13

The Production of Documents," marked

14

for identification, as of this date.)

15
16

MR. GOLDMAN:

Is there a question

pending?

17

MR. PETERSEN:

I'm waiting for

18

her, Ms. Cummings, to read the

19

document.

20

Q.

Do you recognize Exhibit 5?

21

A.

Yes.

22

Q.

Have you seen it before today?

23

A.

Yes.

24

Q.

What is it?

25

A.

Okay; it is the Objections And
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Q.

So, how could it be that it could

3

have any impact on your sales if the libraries

4

are not making the digital copy available of

5

your work?

6

upon sales of your works?

7
8

A.

How could that have any bearing

I wouldn't know.

That's the

answer.

9

MR. PETERSEN:

I don't think I

10

have anything further.

11

much for your time.

12

it.

13

Thank you very

I do appreciate

(Whereupon, at 12:34 p.m., the

14

Examination of this Witness was

15

concluded.)

16
17

________________________
18

PAT CUMMINGS

19
20

Subscribed and sworn to before me

21

This _______ day of __________, 2012.

22

____________________________________
23

NOTARY PUBLIC

24
25

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2

------------------I N D E X------------------

3

WITNESS

EXAMINATION BY

4

PAT CUMMINGS

MR. PETERSEN

PAGE
4

5
6

DIRECTIONS: [None]

7

MOTIONS:

[None]

8

REQUESTS:

[None]

9
10

-----------------EXHIBITS--------------------

11

DEFENDANT'S EXHIBIT

12

Exhibit PC-1,

13

Three pages of the website of Pat

14

Cummings.................................25

15

Exhibit PC-2,

16

Document bearing Bates label

17

AG0003864 through '866..................43

18

Exhibit PC-3,

19

Document bearing Bates label

20

AG0003867 through '868..................48

21

Exhibit PC-4,

22

Document bearing Bates label

23

AG0003870 through '872..................49

FOR I.D.

24
25

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-----------------EXHIBITS--------------------

3

DEFENDANT'S EXHIBIT

4

Exhibit PC-5,

5

Document entitled "Objections And

6

Responses Of Plaintiff Pat Cummings

7

to Defendants' First Set Of

8

Interrogatories And Requests For The

9

Production of Documents................57

FOR I.D.

10

Exhibit PC-6,

11

Digital copy of Talking with Artists...73

12

Exhibit PC-7,

13

Document entitled "Objections and

14

Responses of Plaintiff Pat Cummings

15

to Defendants' Second Set Of

16

Interrogatories And Requests For The

17

Production of Documents................74

18

Exhibit PC-8,

19

Document bearing Bates label

20

AG0002346 through '346................79

21

Exhibit PC-9,

22

Document bearing Bates label

23

AG0000063 through '079................86

24
25

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-----------------EXHIBITS--------------------

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DEFENDANT'S EXHIBIT

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Exhibit PC-10,

5

Document bearing Bates label

6

AG0002365 through '351................89

7

Exhibit PC-11,

8

Document bearing Bates label

9

AG0000027 through '042................95

FOR I.D.

10

Exhibit PC-12,

11

Document bearing Bates label

12

AG0002388 through '2408...............97

13

Exhibit PC-13,

14

Document bearing Bates label

15

AG0000011 through '026...............103

16

Exhibit PC-14,

17

Document bearing Bates number

18

AG0002479 through '485...............105

19

Exhibit PC-15,

20

Document bearing Bates label

21

AG0002301 through '345...............113

22

Exhibit PC-16,

23

Document bearing Bates label

24

AG0000043 through '044...............114

25

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-----------------EXHIBITS--------------------

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DEFENDANT'S EXHIBIT

4

Exhibit PC-17,

5

Document bearing Bates label

6

AG0002387 through '366...............116

7

Exhibit PC-18,

8

Document bearing Bates label

9

AG0002426 through '409...............118

FOR I.D.

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11
12
13
14
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C E R T I F I C A T E

3
4

STATE OF NEW YORK

)
:

5

COUNTY OF RICHMOND

SS.:
)

6
7

I, AYLETTE GONZALEZ, a Notary Public

8

for and within the State of New York, do

9

hereby certify:

10

That the witness, PAT CUMMINGS,

11

whose examination is hereinbefore set forth

12

was duly sworn and that such examination is a

13

true record of the testimony given by that

14

witness.

15

I further certify that I am not

16

related to any of the parties to this action

17

by blood or by marriage and that I am in no

18

way interested in the outcome of this matter.

19
20

IN WITNESS WHEREOF, I have hereunto
set my hand this 4th day of June, 2012.

21
22

__________________________
AYLETTE GONZALEZ

23

(Notary Public No. 01G06228612
Expiration date:

9/27/2014)

24
25

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CONFIDENTIAL-PAT CUMMINGS
ERRATA SHEET FOR THE TRANSCRIPT OF:
Case Name: The Authors Guild Inc v. HathiTrust
Dep. Date: May 22, 2012
Deponent:
PAT CUMMINGS
Pg. Ln. Now Reads
Should Read
Reason
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
___ ___ ______________ _______________ _____
________________________
PAT CUMMINGS

21

SUBSCRIBED AND SWORN BEFORE ME,
22

This___ day of_____________, 2012.
23

24
25

__________________________________
Notary Public
My Commission Expires:__________
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EXHIBIT V

Page 1
1
2

UNITED STATES DISTRICT COURT

3

SOUTHERN DISTRICT OF NEW YORK

4

-------------------------------x
THE AUTHORS GUILD, INC.,

5

et al.,

6

Plaintiffs,

7

vs.

Index No.
11 Civ. 6351 (HB)

8

HATHITRUST, et al.,

9

Defendants.
-------------------------------x

10
11
12
13

VIDEO TELECONFERENCE
DEPOSITION OF HELGE RØNNING

14

New York, New York

15

May 29, 2012

16
17
18
19
20
21
22
23
24

Reported by:
FRANCIS X. FREDERICK, CSR, RPR, RMR

25

JOB NO. 50107
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2
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5

May 29, 2012

6

11:30 a.m.

7
8
9

VIDEO TELECONFERENCED deposition

10

of HELGE RØNNING, held at the offices of

11

Kilpatrick, Townsend & Stockton LLP,

12

1114 Avenue of the Americas,

13

New York, New York, pursuant to

14

Notice, before Francis X. Frederick, a

15

Certified Shorthand Reporter, Registered

16

Merit Reporter and Notary Public of the

17

States of New York and New Jersey.

18
19
20
21
22
23
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25

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A P P E A R A N C E S:

3
4

FRANKFURT KURNIT KLEIN & SELZ

5

Attorneys for Plaintiffs

6

488 Madison Avenue

7

New York, New York

8

BY:

10022

JEREMY GOLDMAN, ESQ.

9
10

KILPATRICK TOWNSEND & STOCKTON

11

Attorneys for Defendants

12

1114 Avenue of the Americas

13

New York, New York

14

BY:

10036

JOSEPH PETERSEN, ESQ.

15
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H. RØNNING
H E L G E

R O N N I N G,

called as a

3

witness, having been duly sworn by a

4

Notary Public, was examined and

5

testified as follows:

6

EXAMINATION BY

7

MR. PETERSEN:

8
9

Q.

Good afternoon, Professor Rønning.

Should I refer to you as Professor Rønning or

10

Dr. Rønning or Mr. Rønning?

11

like me to refer to you?

How would you

12

A.

Professor is fine with me.

13

Q.

That's great.

14

That certainly

suits me as well.

15

Good afternoon, Professor Rønning.

16

My name is Joe Petersen.

17

the Libraries in the HathiTrust case.

18

you ever sat for a deposition before?

19

A.
Q.

Okay.

Have

No.

20

And I'm counsel for

So given that, and given

21

the fact that we're doing this on video, I'll

22

just briefly give you some of the ground rules

23

for the deposition.

24

understand, I'm going to be asking you

25

questions here this afternoon.

I'm sure as you

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2
3

H. RØNNING
rights to my works.
Q.

So you never concerned yourself at

4

all with the type of use made by the libraries

5

with respect to the digitization project.

6
7

MR. ROSENTHAL:
Q.

Objection.

Professor, as you sit here today

8

do you have any understanding of the types of

9

uses made by my clients with respect to the in

10

copyright -- the works that are presumed to be

11

in copyright that are included in the

12

HathiTrust digital library?

13
14
15

MR. ROSENTHAL:
A.

No.

Objection.

And let me answer -- let me

answer.

16

You are, according to Norwegian

17

copyright law, not allowed to do digitization

18

without explicit permission of the author or a

19

representative of the author because that goes

20

against the basis of all continental copyright

21

acts, namely the moral right to your work.

22

Q.

So you're viewing this through the

23

lens of Norwegian copyright law; is that

24

correct, Professor?

25

MR. ROSENTHAL:

Objection.

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H. RØNNING

2

a student in the US wanted -- that was blind

3

wanted to read one of your articles, do you

4

have any knowledge as to how that student

5

could obtain a copy that he or she could

6

actually understand?

7
8
9

MR. ROSENTHAL:
A.

Objection.

No, I do not know.

I mean, I know

what's the situation in Norway.

And I know

10

that that material for the people with

11

impaired sight would typically be handled by

12

the Norwegian Foundation for the Blind and

13

they would do that under the Norwegian

14

Copyright Act and those who are owed copyright

15

to be paid remuneration.

16

blind student wants a book to be as an audio

17

book he or she can ask for it and then it can

18

be recorded for him and the copyright owner

19

will be remunerated and she will get it under

20

the Norwegian Foundation.

21

Q.

Typically, if a

But you have no understanding of

22

how a US student would obtain -- would -- a US

23

student with a print disability would obtain

24

access to your works.

25

A.

No.

Why should I?
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H. RØNNING

2

questions.

Thank you very much,

3

Professor.

You're done.

4
5
6

THE WITNESS:

All right.

This has

been very interesting.
(Time Noted:

2:27 p.m.)

7
8
9
10
11
12
13
14
15
16
17
18
19

____________________

20

HELGE RØNNING

21
22

Subscribed and sworn to before me

23

this 29th day of May, 2012.

24
25

_________________________________
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3

C E R T I F I C A T E
STATE OF NEW YORK

4
5

)
: ss.

COUNTY OF NEW YORK

)

6

I, FRANCIS X. FREDERICK, a

7

Notary Public within and for the State

8

of New York, do hereby certify:

9

That HELGE RØNNING, the witness

10

whose deposition is hereinbefore set

11

forth, was duly sworn by me and that

12

such deposition is a true record of

13

the testimony given by the witness.

14

I further certify that I am not

15

related to any of the parties to this

16

action by blood or marriage, and that

17

I am in no way interested in the

18

outcome of this matter.

19

IN WITNESS WHEREOF, I have

20

hereunto set my hand this 8th day of

21

June, 2012.

22
23
24

_____________________

25

FRANCIS X. FREDERICK
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----------------- I N D E X ------------------

3

WITNESS

EXAMINATION BY

PAGE

4

HELGE RØNNING

MR. PETERSEN

4

5
6
7
8
9

----------- INFORMATION REQUESTS -------------

10

DIRECTIONS:

11

RULINGS:

12

TO BE FURNISHED:

13

REQUESTS:

14

MOTIONS:

100

NONE
NONE

NONE
NONE

15
16
17
18
19
20
21
22
23
24
25

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------------------ EXHIBITS ------------------

3

HR

4

Exhibit 1

5

Resumé of Helge Rønning................. 7

6

Exhibit 2

7

article entitled

8

Intellectual property

9

rights and the political

FOR ID.

10

economy of culture...................... 72

11

Exhibit 3

12

article entitled

13

Systems of control and regulation:

14

Copyright issues, digital divides

15

and citizens' rights.................... 74

16

Exhibit 4

17

document

18

headed Exhibit A........................ 83

19

Exhibit 5

20

Standard Contract for

21

Non-Fiction Literature

22

bearing production

23

numbers AG 0000144

24

through AG 0000157...................... 88

25

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------------------ EXHIBITS ------------------

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HR

4

Exhibit 6

5

Objections and Responses

6

of Plaintiff Helge Rønning

7

to Defendants' First Set of

8

Interrogatories and Requests

9

for the Production of Documents......... 97

FOR ID.

10

Exhibit 7

11

Objections and Responses of

12

Plaintiff Helge Rønning to

13

Defendants' Second Set of

14

Interrogatories and Requests

15

for the Production of Documents......... 113

16
17
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19
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22
23
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NAME OF CASE: AUTHORS GUILD v. HATHITRUST
DATE OF DEPOSITION: MAY 29, 2012
NAME OF WITNESS: HELGE RØNNING
Reason codes:
1. To clarify the record.
2. To conform to the facts.
3. To correct transcription errors.
Page _______ Line ______ Reason _____
From __________________ to _____________

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9
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Page
From
Page
From

_______ Line ______ Reason _____
__________________ to _____________
_______ Line ______ Reason _____
__________________ to _____________

Page
From
Page
From

_______ Line ______ Reason _____
__________________ to _____________
_______ Line ______ Reason _____
__________________ to _____________

Page
From
Page
From

_______ Line ______ Reason _____
__________________ to _____________
_______ Line ______ Reason _____
__________________ to _____________

Page
From
Page
From

_______ Line ______ Reason _____
__________________ to _____________
_______ Line ______ Reason _____
__________________ to _____________

Page
From
Page
From

_______ Line ______ Reason _____
__________________ to _____________
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__________________ to _____________

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____________________________
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HELGE RØNNING
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EXHIBIT W

Peter Leonard (Univ. Chicago)
Timothy R. Tangherlini (UCLA)

Trawling in the Sea of the Great Unread:
Sub-Corpus Topic Modeling and Humanities Research

Abstract
Given a small, well-understood corpus that is of interest to a Humanities scholar, we
propose sub-corpus topic modeling (STM) as a tool for discovering meaningful passages in a
larger collection of less well understood texts. STM allows Humanities scholars to discover
unknown passages from the vast sea of works that Moretti calls the “great unread,” and to
significantly increase the researcher’s ability to discuss aspects of influence and the
development of intellectual movements across a broader swath of the literary landscape. In
this article, we test three typical Humanities research problems: in the first, a researcher
wants to find text passages that exhibit latent semantic similarities to a collection of
influential non literary texts from a single author (here Darwin); in the second, a researcher
wants to discover literary passages related to a well understood corpus of literary texts (here
emblematic texts from the Modern Breakthrough); and in the third, a researcher hopes to
understand the influence that a particular domain (here folklore) has had on the realm of
literature over a series of decades. We explore these research challenges with three
experiments, the first focused on the echoes of Darwin’s work in the broader Danish literary
realm; the second focused on unknown authors from the “Modern Breakthrough,” a shift in
Danish (and Nordic) literature away from Romanticism and toward Naturalism starting in
the 1870s, and concomitant with the translation of Darwin’s works into Danish; and the

1

Leonard and Tangherlini 2
third focused on the emergence of folklore and a turn toward rural motifs in Danish
literature from Romanticism through the progressive literature of the early twentieth century.
Keywords: Topic Modeling, Literature, The Modern Breakthrough, Folklore, Denmark

Introduction
Over the past five years, literary scholars have acquired access to increasingly large
collections of digitized texts. Consequently, they struggle with a new inflection of the age-old
problem that for any given research question there exist far too many works in the target
corpus to be able to read all of them carefully. While simple barriers such as physical access
restricted research in the past, these barriers have begun to disappear in the digital age and
people now have broad access to previously difficult to access works. To account for this
change in access to materials, researchers must conduct searches that not only have high
precision as was the case with the limited searches based on canonical views of literary
history—standard practice in Humanities research for many centuries—but also have high
recall. If one has access to all of the fiction published in Denmark from 1860-1920, for
example, and one is engaged in a study focused on this literature, one can no longer suggest
that reading the best-known works (and some from around the edges) provides adequate
coverage of the literary landscape. Similarly, if one is interested in specific literary themes or
topics, the desire to discover those themes or topics across the entire corpus is too enticing
to ignore.
Text-mining techniques that allow for the rapid identification of “passages of
interest” contribute significantly to a scholar’s ability to narrow down a broader corpus into
a research collection and to understand the relationships between the works in this
collection, thereby holding out the promise that one can develop a more encompassing

Leonard and Tangherlini 3
understanding of a particular field. Accordingly, one of the goals of our work is to develop
techniques that allow for the rapid identification of a large collection of passages from
mostly unknown works that intersect with well-known passages from well-known works.
These techniques in turn can contribute to the development of new perspectives not only on
the known corners of the literary realm (e.g. “the canon”) but also on parts of the literary
corpus largely ignored by previous scholarship. By developing these techniques, problems
posed by the recent emergence of “big data” collections of literature such as Google Books,
HathiTrust, and the Internet Archive, no longer stand as barriers to research but instead as
considerable research assets. The challenge resides in developing fast, intuitive and easy-touse techniques that address the problems of “big data” collections while taking advantage of
the expert knowledge that has developed over the course of many decades in the study of
literature.
With the emergence of “big data” collections, there are too many accessible texts to
read each one closely; even if one could read them closely, it is unlikely that one could read
them consistently; and if one could read them consistently, it is inconceivable that one would
be able to remember even a small percentage of them. Developing a model of “meaning” by
applying unsupervised machine learning techniques across the entire corpus might be a
solution to this problem. Yet, while this is an intriguing idea and one not addressed in this
paper, such an approach would have limited applicability beyond providing a first level
approximation of the general contours of topics in a particular literature at a particular time.
[1] Except for encyclopedic projects, most contemporary literary scholarship does not focus
on making broad generalizations about a national literature, but rather emphasizes narrower
developments in the literary landscape coupled to a thorough contextual knowledge of the
impact and spread of those developments. Not surprisingly, analysis of this type is largely

Leonard and Tangherlini 4
dependent on a scholar’s “domain expertise”.
Literary domain expertise is formed from the study of an imperfect and largely
arbitrary canon.[2] In “The Slaughterhouse of Literature,” Franco Moretti notes that “[t]he
majority of books disappear forever—and ‘majority’ actually misses the point: if we set
today’s canon of nineteenth-century British novels at two hundred titles (which is a very high
figure), they would still be only about 0.5 percent of all published novels” (Moretti 2000,
207). Despite this arbitrariness underlying canon formation, an inherent passive connection
exists between the canon and the hundreds of thousands of literary works digitized in a
project such as Google Books. Thus the canonical texts upon which domain expertise is
largely founded form a part, no matter how statistically insignificant, of the entire corpus. An
excellent example of this can be found in the context of Nordic literature, the literature that
comprises our “domain expertise.” One of the goals of our work is to transform this passive
relationship between the canonical texts on the one hand and all of the other books in the
Google Books corpus on the other hand into an active relationship. This transformation
represents an important step toward developing techniques for the discovery of “passages
of interest” in a large unlabeled corpus given a series of well-understood texts.
We conceive of this approach as a targeted fishing expedition: a small sub-corpus of
literary works serves as a trawl line and is passed through the “Sea of the Great Unread”;
whatever gets “caught” will likely be of interest to someone interested in the sub-corpus. By
considering all of the books in the domain but limiting the search to topics of interest based
on the sub-corpus (or “corpus of interest”), this approach greatly increases the recall of
otherwise overly “precise” searches that have characterized canonical research in the
Humanities.[3] In our work presented below, we fashion the hooks on our trawl line by
implementing Latent Dirichlet Allocation (Blei, Ng, Jordan 2007) on a small, well-

Leonard and Tangherlini 5
understood sub-corpus and use the derived topic models to “catch” texts in the larger,
poorly understood corpus.[4] We label this approach sub-corpus topic modeling (STM) [figure 1].

fig. 1: Flowchart showing the STM process
Limitations of Keyword Search
“Whole text” search based on probabilistic topic modeling has distinct advantages
over simple keyword search. Certainly, the temptation exists for many literary scholars to
believe that their domain expertise provides them with sufficient knowledge to perform
productive keyword searches. For example, if “the countryside” is an important concept in
nineteenth century British novels, a domain expert should be able to develop a limited set of
keywords—or perhaps key phrases—related to the countryside, such as “manor”, “farm”,
and “field”, and retrieve a large number of new texts. Implementing a simple thesaurus or
WordNet approach could further augment this strategy. This approach certainly aligns with
current search strategies in the Humanities, yet it often fails to provide the higher degree of
recall that the current research environment demands. Similarly, it fails to discover passages
that do not include those particular keywords (or their synonyms). Apart from being tedious
(particularly in the case of highly inflected languages such as Icelandic), this strategy, for all
intents and purposes, increases recall simply by iterating through a series of high-precision

Leonard and Tangherlini 6
searches. It also produces results that are hard to duplicate.
Cameron Blevins’s work on the application of topic modeling to Martha Ballard’s
Diary provides a good counter example to keyword search (Blevins 2010). Spirituality
emerges as an important theme in Ballard’s diary, a late-eighteenth/early-nineteenth century
text written over the course of three decades by a midwife in Maine. Yet a search for the
keyword “God” misses numerous passages related to spirituality, as Ballard uses paraphrases
such as “his great name to him who is kind to the Evle and unthankfull, whose tender
mercies are over all his work” (Blevins 2010). Even a researcher with an expert grasp of how
Americans in the late eighteenth century expressed their thoughts about religion and God
would risk missing passages that did not conform to these expectations. In a series of
electronic articles on the diary, Blevins demonstrates that a more productive approach is to
let the corpus organize itself into coherent topics (Blevins 2010). The historian can then label
the resulting topics with meaningful descriptions. Here, the computer algorithm is given the
task of what it does best: counting words and calculating probabilities of term cooccurrence. The scholar is given the task of what he or she does best: applying domain
expertise and experience for labeling and curating the topics.
This division of labor has significant implications for the extraction of meaning from
large corpora. As opposed to keyword search which requires that the researcher know what
to look for a priori, the topic modeling approach asks the algorithm to reveal latent semantic
patterns in the data, and couples these latent patterns with expert-applied labels. The
researcher can subsequently “curate” these labeled topics, weeding out uninteresting ones
and focusing on those that appear promising for the research problem at hand. Since topic
modeling algorithms can never “understand” the words they process and similarly cannot
propose firm conclusions about the books they have “read,” scholars must serve in those

Leonard and Tangherlini 7
crucial capacities.
In what follows, we present preliminary findings from three experiments that make
use of STM as a means for sophisticated search in a large, unlabeled corpus and explore the
extent to which this approach provides results that would be hard to achieve with keyword
search.[5] The STM dashboard [see figure 2 as an example] provides the researcher with
useful information including (a) visualizations that show topics as a word cloud and an ngram cloud and that also allow the researcher to label the topics, (b) a bar-graph showing the
number of text passages (chunks) per year, (c) a ranked list of text chunks, (d) a pie-chart
showing the degree of saturation for any given selected text chunk, and (e) a drill-down
method for not only reading the identified passage but also linking to the full work in
Google Books. At the bottom of the screen, a simple network visualization of labeled topics
(f) allows a researcher to move between topics with links based on shared passages in the
sub-corpus. In this context, it is important to understand that LDA conceives of texts as a
mixture of topics. In future implementations of the STM dashboard, a researcher will be able
to upload a sub-corpus and select the number of topics to generate for that sub-corpus, as
well as curate the generated model by providing labels for topics or deleting them (topic
model curation).[6]
First Experiment: Natural Science, Naturalism and the Modern Breakthrough
The translation of Charles Darwin’s publications in the early 1870s into Danish was a
seminal event in Nordic literary history. Though an English-speaking elite could read On the
Origin of the Species in 1859 and The Descent of Man in 1871, Peter Kjærgaard, Niels Gregersen
and Hans Hjermitslev note that the translation of the original texts, “was an important step
in the education of the public. Without the book[s] in Danish the public was easily misled by
the voices of immature adherents… Being able to read the original work[s], they could now

Leonard and Tangherlini 8
witness for themselves” (Kjærgaard, Gregersen and Hjermitslev 2008, 150). At the time,
progressive Danish intellectuals were in desperate need of transformative ideas from abroad
in literature as well as in science. Conservatism and parochialism threatened to be
triumphant, led in part by the Romantic leanings of Denmark’s foremost scientist Hans
Christian Ørsted who, in his non-scientific writings, set a tone of disinterest in Positivism.
Frustrated by the slow pace of change and the threat of backsliding, the radical
literary critic Georg Brandes eagerly appropriated Darwin’s ideas on natural selection as a
weapon in his fight against Theocentrism, a notion that was quickly developing a
stranglehold on intellectual and artistic trends. Although initially on the edges of the literary
and academic establishment, Brandes, his brother Edvard (a leading journalist), and a close
circle of artists and intellectuals echoed Brandes’s passionate argument that “[w]riters should
present nature, the world and the people in it as they were and, through that, work in the
service of progressive ideas and social reform” (Kjærgaard, Gregerslev and Hjermitslev 2008,
149). Consequently, as Kjærgaard, Gregersen and Hjermitslev note, “Darwin was celebrated
in Brandes’s circle as founder of an entirely new—and to them correct—view of nature”
(2008, 149).
At the beginning of the 1870s, Jens Peter Jacobsen, a young Danish botanist, began
publishing articles explaining and promoting Darwinism in the journal, Nyt dansk
Maanedsskrift [New Danish Monthly], a magazine that was closely allied with the Brandes
circle. Jacobsen had previously received the gold medal from the University of Copenhagen
given to the best thesis for his fieldwork on fresh-water algae but by the 1880s had largely
abandoned his scientific endeavors to pursue literature. Suffering from tuberculosis,
Jacobsen left Copenhagen and moved back to his parents’ house in northern Jutland and
began writing poetry and fiction. He is now recognized not for his botanical work, but rather

Leonard and Tangherlini 9
for his literary oeuvre and is considered to be one of Denmark’s most important authors.
This position was solidified by his inclusion, despite his young age, in Brandes’s Det moderne
Gjennembruds Mænd [Men of the Modern Breakthrough] (1883), a defining work in Nordic
literary studies. In Jacobsen, Brandes found an advocate of Darwin equally comfortable with
the written page and the Petri dish, a characteristic entirely consistent with the goals of the
Modern Breakthrough.
After honing his thoughts on Darwin by publishing summaries, interpretations, and
commentaries, Jacobsen undertook a translation of On the Origin of the Species, published as
one volume in 1872, and a translation of the first two volumes of The Descent of Man,
published in 1874 and 1875 respectively. These were well received and widely read (or at
least, widely purchased). Although the myth of Jacobsen as the first significant promoter of
Darwinism in Denmark is likely apocryphal, his interpretive work and unabridged
translations solidified his role as an important spoke in the scientific and literary networks of
the time. Partly because of Jacobsen and Brandes’s roles in promoting Darwin’s work in
Denmark, Darwin received as much interest in fields outside of the Natural Sciences as
within (Kjærgaard and Gregersen 2006). Jacobsen himself wrote of his desire to “exchange
the ancient poetry of Mystery with the new poetry of Law, […] swap arbitrary, supernatural
and personal Governance for a clear Order of Nature” (Jacobsen 1871a, 419).[7]
Given these developments, and the role of Darwin’s writings in anchoring the push
toward Naturalism, a challenge question immediately presents itself: Can we find traces of
this shift to a natural-scientific understanding of society presaged by the translation of
Darwin’s works in the 1870s by Jacobsen in the larger corpus of Danish language works in
Google Books? Beyond the works of Jacobsen, are there other literary works lurking in the
Sea of the Great Unread that can help us explore the penetration of Darwin’s ideas—granted

Leonard and Tangherlini 10
filtered through Jacobsen’s translational lens—into the broader literary world? As outlined
above, our strategy is to let Jacobsen’s translations of Darwin organize themselves into
“topic models” and then use these as the basis of our fishing expedition. Instead of
presuming that we know which keywords best represent this Naturalist turn, we allow the
algorithm to present groupings of “text chunks”—in this case paragraphs—that we label and
curate.[8] This labeled and curated sub-corpus topic model becomes the basis of the
subsequent searches in the broader corpus of Danish literary texts. Presumably, if Danish
literature is influenced by Jacobsen’s translations of Darwin, then we should discover many
of these works ranked highly in the resulting search results.
Concatenating the Danish translations of On the Origin of Species and The Descent of Man
and modeling the topics in these works at the level of one hundred topics generates some
interesting results. One topic, that we label “social instinct,” is constituted by words and
phrases such as instinkter [instincts], følelser [feelings], sympathy [sympathy], moralske følelse
[moral feeling] and selskabelige instinkter [social instincts]:

fig 2: The topic, “Social Instincts”, and the STM dashboard.
Two of the top-rated passages of Jacobsen’s translations of Darwin for this topic include:[9]
Social animals are partly impelled by a wish to aid the members of the same

Leonard and Tangherlini 11
community in a general manner, but more commonly to perform certain
definite actions. Man is impelled by the same general wish to aid his fellows,
but has few or no special instincts (Darwin 1871, 392).
I am aware that some persons maintain that actions performed impulsively…
do not come under the dominion of the moral sense, and cannot be called
moral… But it appears scarcely possible to draw any clear line of distinction
of this kind; though the distinction may be real. As far as exalted motives are
concerned, many instances have been recorded of barbarians, destitute of any
feeling of general benevolence towards mankind, and not guided by any
religious motive, who have deliberately as prisoners sacrificed their lives,
rather than betray their comrades; and surely their conduct ought to be
considered as moral (Darwin 1874, 96).
As hoped, the algorithm discovers a number of interesting texts that support the contention
that Darwin’s topics were influential outside of the natural sciences including several
intriguing examples from the intellectual press such as the monthly Det nye Aarhundrede (The
New Century).
In a reformist piece on the subject of “Det gældende Straffesystem” [The Current
Penal System], a largely forgotten yet at the time influential Police Inspector, August Goll
(1866-1936), laments the unfairness of Danish criminal law as “…truly a tragic conflict, in
which Society as the strongest crushes the weakest, without the slightest moral right to do
so—for in the zone of morality no dictate can apply” (Goll 1906, 409). A similar passage
appears in Kriminal-Antropologiske Studier over Danske Forbrydere (Criminal-Anthropological
Studies of Danish Criminals), in which the obscure physician and progressive prison
reformer, Christian Geill (1860-1938), opines that “For the sociological school [of thought],

Leonard and Tangherlini 12
criminality is only one of the many symptoms of social illnesses; it is this sickness itself
which must be attacked through treatment” (Geill 1906, 7). Although Goll and Geill are
essentially unknown in Danish intellectual circles today, their work was instrumental in
ushering in prison reforms at the start of the twentieth century, and their work on the rights
and the humane treatment of prisoners—moving away from a position that criminals were
born that way—still informs Danish theories of the prison today.
Although these first two passages are from a non-fiction work and an opinion
article—revealing that questions related to Darwin’s conception of “social instinct” had
broad appeal across many fields—similar passages also appear in literature. For example, in
Jakob Knudsen’s (1858-1917) novel Inger , a man asks the parish minister whether he
considers his affair with Inger to be dishonorable (æreløst). The minister responds:[10]
Yes, Ditlev, I must. And that is dishonorable you will notice more strongly
and clearly each day it continues unfortunately. Because it is society alone
that decides what is honor and what is shame. You have offended society’s
morals and laws, such as they are nowadays, and that is what counts (and
must count) with respect to honor and shame—no matter how good a
conscience you may have had in your own ignorance (Knudsen 1906, 253).
Popular (yet scandalous) at the time of its publication, Inger, which tells of a love triangle
between a woman, her husband and her live-in lover has, in later years, been consigned to
the Sea of the Great Unread. Despite the disappearance of all of these works from the
“domain expertise” of current scholars, STM “rediscovers” them. In each of these
passages—all chosen from a single year, 1906—Darwin’s thoughts on the tension between
human being and citizen, between the individual and society, is captured well.
A second topic, labeled “struggle for survival,” invokes words and phrases such as

Leonard and Tangherlini 13
fight one another, defense against enemies, fight against, weapon, fight, defense, rivals, strength and
occupation. The most saturated passage for this topic in the Darwinian texts is a description of
polygamous birds “furnished with special weapons for fighting with their rivals, namely
spurs, which can be used with fearful effect” (Darwin 1874, 311). Darwin nuances this
language of struggle in On the Origin of the Species by noting (in another highly-ranked passage):
I should premise that I use the term Struggle for Existence in a large and
metaphorical sense, including dependence of one being on another, and
including (which is more important) not only the life of the individual, but
success in leaving progeny. Two canine animals in a time of dearth, may be
truly said to struggle with each other which shall get food and live. But a
plant on the edge of a desert is said to struggle for life against the drought,
though more properly it should be said to be dependent on the moisture
(Darwin 1859, 50).
One of the most highly-ranked passages from literature published in 1906 is a paragraph
from historian Hans Thorvald Olrik’s biography of the twelfth-century archbishop Absalon
(Olrik 1909). Describing the development of a rebellion in Southern Sweden, Olrik writes:
In short, it was the earlier society, prehistoric society’s fight against the
innovations and transformations of the Valdemar era and this rupture
included the political, the religious and the social. Yet these counter-currents
against the ruling powers were so uneven at first they could not immediately
coalesce into a solid plan and clear desire. The Scanian Uprising was very
hesitant at first, the common people barely knew what they wanted
themselves, and threw themselves in a seemingly random fashion into the
struggle first against the state, then against the Church and finally against the

Leonard and Tangherlini 14
upper class. But during the course of these events, the streams find each
other, and finally the uprising becomes a foaming river, tearing into
everything along the way, so the strongest forces in the country would have
to come together in order to stem the danger (Olrik 1909, 46).
Olrik’s metaphor is based on nature, comparing a conflict in human interests to one of
geologic and hydrological forces. Here, Darwinian concepts of the “struggle for survival”
have been incorporated in early twentieth century historiography, a development that
Jacobsen and Brandes would likely have applauded. At the very least, this topic might be a
useful investigatory tool to more closely examine metaphors of naturalized conflict in both
history and fiction writing in early twentieth century Denmark.
Second Experiment: Missing Authors of the Modern Breakthrough
The naturalist turn in literary circles was a significant break—perhaps the most
significant break—in Danish literary history. Yet, for many years, the break was traced
almost exclusively in the work of the small number of authors that Brandes identified as the
men of the Modern Breakthrough (1883). As such, Danish literary history, and the impact of
the work of Darwin on the literary landscape, was largely constrained to a handful of
canonical authors. It was not until 1983, with Pil Dahlerup’s Det moderne gennembruds kvinder
[Women of the Modern Breakthrough], that women were included in the canon of the
Modern Breakthrough, and perhaps only begrudgingly so. Dahlerup’s book was more
important in that it challenged the general canonical premise of Nordic literary history: if we
missed all of these women authors and their quite interesting and engaging works, what else
were we missing?
In this second experiment, we approach this problem of the “Missing Authors of the
Modern Breakthrough.” To address it, we modeled representative work from Jacobsen’s

Leonard and Tangherlini 15
fiction and that of two other “Men of the Modern Breakthrough”, Sophus Schandorf and
Holger Drachman. This trawl line, tuned to the Modern Breakthrough as defined by Brandes
and expressed in the works of these three canonical authors, should catch passages from
other authors recognized as Modern Breakthrough authors; ideally, if one accepts Dahlerup’s
underlying premise that the seventy women whom she identified as having their literary
debut during the heyday of the Modern Breakthrough contributed to the contours of the
Breakthrough, STM should also place passages from their work among the results with high
topic saturation. A successful result would also include the identification of relatively
unknown authors or texts (and passages) among these highly-ranked search results.
The Modern Breakthrough, modeled at fifty topics, provides some interesting results
but, as with the other experiments, also brings to the fore the somewhat unpredictable
nature of the Google Books corpus—a fairly large number of indices, statistical compendia,
and catalogs tend to overload the topic models, returning these in very high ranked
positions. At fifty topics, this problem is somewhat easier to ignore, while at lower levels, the
initial rank list of “saturated” passages can at times be overwhelmed by these “junk fish.” A
refinement to our tool would allow the researcher to rapidly clean the target collection of
uninteresting results and rerun the algorithm in an iterative fashion. That said, the results of
modeling the Modern Breakthrough offers some interesting results.
One topic, focusing on a woman’s thoughts, uncovered several interesting passages
from a work by Magdalene Thoresen (1819-1903), a relatively obscure female writer
mentioned in Dahlerup’s work. Thoresen began her career as an author in the period
between the Golden Age of Danish Romaniticism and the Modern Breakthrough, with a
short story, “En Aften i Bergen” (1858). As she developed as an author, the relationship
between the sexes became one of her main themes, in line with the gender debate that was a

Leonard and Tangherlini 16
main focus of the Modern Breakthrough. Not surprisingly, the topic also captures passages
from several male Modern Breakthrough authors as well. Passages from Thoresen’s work,
Elvedrag og andre fortællinger (1893). are saturated with another topic as well, labeled “her self”
and constituted by words such as hende [her], hendes [hers], hendes fader [her father], hendes øjne
[her eyes]. The topic interestingly also captures passages from Bjørnstjerne Bjørnson,
Norway’s leading Romantic nationalist author, Evald Tang Kristensen’s collections of
legends (see below), and a tragedy by the Nobel prize-winning Modern Breakthrough author
Karl Gjellerup. A topic that quite by chance appears directly below this in our topic curation
browser—a topic related to “intelligence”—reveals numerous passages from Darwin (!) and
Gjellerup:

fig. 3: The topic “her self” and “intelligence” as seen in the topic curation interface.
Thoresen is not, however, the only woman writer that STM identifies.
Perhaps one of the least well-known, but fascinating female authorships, of the late
nineteenth century is that of Alfhilda Mechlenburg (1831-1908) (Dahlerup 1983, 148-151).
The daughter of an Army Captain, Alfhilda spent much of her youth in Sønderjylland along

Leonard and Tangherlini 17
the German border, but moved in her late teens to Norway. After the tragic death of her
husband and her child, she returned to Denmark where she began a writing career, a career
that her two younger sisters had already engaged. Mechlenburg was hardly an adherent of
the Modern Breakthrough ideals, but was rather initially caught up in a Romantic idealism
that, as with Bauditz’s neo-Biedermeier oeuvre, was extremely popular. In Mechlenburg’s
case, she was able to capture a very large portion of the largely urban, literate female reading
public even though she published under the male pseudonym Ivar Ring. By 1882,
Mechlenburg had managed to become one of the authors funded by the state budget, which
freed her up to write even more including her collection of short stories, I Vaar (1895). In a
somewhat hard to interpret topic that deals with men, little girls, god, black robes and
shouting, passages from this collection appear along with Wied’s Ungdomshistorier (1895),
while another topic related to longing, death and inheritance places passages from her work
not only alongside this work by Wied, but also Edvard Brandes’s three act play, Muhammed
(1895).
The list of late nineteenth century woman writers from whose works passages are
recognized as being allied with better known male writers from the Modern Breakthrough is
surprisingly large, and reveals the extent to which STM can be used to identify both authors
of interest but also passages of interest. Anna Erslev (1862-1919), another of the female
authors discussed by Dahlerup (1983, 400-420), appears most dramatically in a topic related
to delight and disagreement—an interesting juxtaposition that in some ways captures the
tensions that the Modern Breakthrough wanted to bring into art. Erslev’s lyrical “folk
historical” play about the ancient Danish king Valdemar was a bit of a departure from her
focus on children’s literature (a pedagogical endeavor that associates her with Carl Ewald
and his translation of the Grimms’ fairy tales, see below), yet aligned her with progressive

Leonard and Tangherlini 18
ideas about education that were catching on in Denmark. Perhaps more interesting is that
STM’s passage identification places her work close to that of Amalie Skram, long considered
to be the leading, progressive feminist voice in late nineteenth century Scandinavian
literature.
It is not only the relatively unknown female authors whose works are caught by the
Modern Breakthrough trawl line. Rehearsing all of the intriguing and relatively unknown
passages that (a) exhibit a degree of latent similarity with the main works of the main
Modern Breakthrough authors and (b) exhibit that same similarity with known but less
canonical works would be an exhausting exercise. Nevertheless it is worth noting that many
of the caught passages come from authors whose work was later disregarded as not being
central to the Modern Breakthrough or was otherwise ignored as it complicated the picture
of the period. Vilhelm Østergaard’s novel, Danmarks Vovehals (1894), a historical novel about
Peder Skram, a nearly legendary sixteenth century Danish military adventurer, is clearly one
such work. Interestingly, Østergaard played an important role as a consultant at Gyldendal,
editing the “Gyldendal library” of Danish literature (175 volumes) and this broad literary
exposure to the leading authors of the nineteenth century emerges in his picaresque
engagement with different styles, his debut collection of short stories echoing the far more
famous H. C. Andersen, his later works picking up on themes from Schandorf, while his
theatrical work was largely comprised of dramatizations of several of Sophus Bauditz’s
novels. Østergaard’s novel about Skram stands as a weak echo of J.P. Jacobsen’s Marie
Grubbe and, like the rest of his authorship, while popular in its time, never broke through
into the canon.
The Modern Breakthrough is far too central a phenomenon in Nordic literary history
to be able to explore its complexities here. Nevertheless, STM offers a novel method for

Leonard and Tangherlini 19
finding evidence to help explore these complexities. Indeed, the discovery of interesting
intersections and juxtapositions of not only authorships but also individual passages is a key
advantage to this method over more standard search methods. Adding more authors to the
mix, particularly given STM’s uncanny ability to snag unknown or forgotten ones, is a key
element in the struggle for increased recall in Humanities research. While STM will not
supplant analysis and hard work in the archives, it does offer the opportunity to develop a
more sophisticated map of the intersections of authors, known and unknown, during this
period of considerable artistic upheaval in Denmark and the Nordic countries.
Third Experiment: Folklore, Regional Literature and the “Folk Breakthrough”
Most casual observers of Danish literature are aware of the central place that Hans
Christian Andersen (1805-1875) occupies in Nordic literary history, a reputation solidified by
the international success of his “Fairy Tales.” Yet H.C. Andersen was hardly the only Danish
author to engage folkloric themes in his literary oeuvre, and the impact of folklore on the
literary landscape extended far beyond the limited realm of Andersen’s authorship. Folklore
collection became an important endeavor in the early nineteenth century in the aftermath of
the disastrous Danish alliance with Napoleon and the subsequent national bankruptcy in
1814. As with many other European countries, folklore collection was closely tied to national
Romantic movements, and this is perhaps best exemplified in the writings of Svend
Grundtvig (1824-1883), the son of Denmark’s most famous national Romantic theologian.
Grundtvig’s entreaties to Danish schoolteachers and local historians to collect the “national
treasure” of ballads as a reflection of the unique poetic creativity of the Danish folk
motivated a young schoolteacher, Evald Tang Kristensen, to begin his collecting in 1864
(Grundtvig 1843). Over the course of the next six decades, Tang Kristensen crisscrossed the
Danish countryside, amassing a folklore collection of more than 24,000 manuscript pages.

Leonard and Tangherlini 20
As Tang Kristensen became increasingly well-known among his fellow
schoolteachers and local historians, his collection became both a model for other collections
of largely local storytelling and an inspiration for the burgeoning interest among the small yet
active rural intelligentsia in the study of dialects and everyday life in the countryside. This
group spearheaded a distinctive and important development in Danish literary history that
has been coined the “Folk Breakthrough”, a clear response to the pendulum swing toward
Symbolism that followed in the aftermath of the Modern Breakthrough, yet one that resisted
the pessimism of the Modern Breakthrough and the decadence of the fin-de-siècle Danish
novel. The Folk Breakthrough was characterized by its emphasis on region over nation, the
rural over the urban; authors of this movement have often been characterized as members of
the turn toward “Hjemstavnslitteratur” [Regional literature], a genre that became increasingly
popular in the early decades of the twentieth century.
Unlike the Modern Breakthrough that looked to Brandes as a unifying, theoretical
voice, the Folk Breakthrough had no main intellectual anchor figure. Jeppe Aakjær, who
learned about folklore and Jutlandic dialects directly from Tang Kristensen, was perhaps one
of the most articulate and best recognized of these emerging authors (Tangherlini 1999). He
traced many of his thematic influences not only to Tang Kristensen and the Jutlandic
peasantry, but also to Steen Steensen Blicher. Somewhat confusingly, Blicher is generally
considered to be among Denmark’s foremost Romantic poets while, at the same time, one
of Denmark’s earliest Naturalists (Aakjær 1903-1904; Brix 1916). This shifting interpretation
of Blicher’s position in Danish literary history is not only representative of the unsteady
ground that marks the late nineteenth century in Danish literature but also of the inadequacy
of models that insist on a single assignation for an authorship. STM helps reveal that not all
engagements with folklore, the countryside and everyday rural life were nostalgic examples

Leonard and Tangherlini 21
of Biedermeier literature (a rural idyllic representation of country life resting on a bed of
Romanticism), unapologetic Romantic peons to the Nation, or realistic engagements with
the natural. Indeed, in later years, Johannes V. Jensen (1873-1950) with his influential
Himmerlandshistorier (1898-1910) was held up as the leading figure of the Hjemstavnslitteratur,
thereby again revealing the profoundly fractured nature of the Folk Breakthrough.
Rural motifs are remarkably common in Danish literature from the nineteenth and
early to mid twentieth centuries. While passages from major works, such as Herman Bang’s
Ved Vejen and J.P. Jacobsen’s Marie Grubbe, are easy enough to discover, largely because they
form part of the canon, discovering lesser known works, or discovering the intersection of
folkloric topics with the broader corpus of Danish literature, is considerably more difficult.
Despite this difficulty, discovering a broad range of passages depicting everyday rural life
may allow us to better understand the complex and at times contradictory reliance on the
rural in Danish fiction. Importantly, the goal is not to discover retellings of fairy tales or
legends.[11] Rather, the underlying idea is that by modeling a comprehensive collection of
folklore, the general “feel” of rural life embedded in the folklore can be used to discover
literary works that attempt to capture that same “feel.” An ideal series of results would
capture not only other collections of folklore but also literary works that engage the rural,
from the conservative and Romantic Biedermeier literature of the mid-1800s, to the
Naturalist engagement with the rural in the Modern Breakthrough, to the emergence of rural
regional literature from the Folk Breakthrough.
To devise our folklore trawl line, we modeled ~34,000 legends from Tang
Kristensen’s collections (Tang Kristensen 1892-1901; 1928-1939), deriving 100 topics from
the collection. Not surprisingly, when we set out on the Sea of the Great Unread with this
line, we caught passages from several other collections of folklore, including printed versions

Leonard and Tangherlini 22
of Tang Kristensen’s folklore collections, other volumes of collected folklore, and literary
reworkings of fairy tales. More importantly, we discovered a very large number of passages
from literary works, known and unknown, that were closely related to these folkloric topics.
An interesting find that illustrates the intersection between the folkloric and the
literary is a passage from Herman Bang’s Haabløse Slægter (1880). For a topic we labeled
“death and churchyards,” the following passage from Bang appears:
Yesterday, when I saw him, I came to think—God knows how—about a
starving dog, no, not starving, but a miserable, tired, emaciated dog that lies
still, eyes heavy and dies on his master’s grave. And I don’t know, but now I
find this picture striking: thought, the controlling, the dominant forces in him
have died, and now he spiritually starves to death on his dead master’s grave
(Bang 1880, 319).
While considerably more poetic and certainly more overtly pessimistic than most legends
about cemeteries, Bang captures well the uncanny, perhaps supernatural, connection in folk
belief between dogs and their masters after death. Another topic that we labeled “Shooting
and Witches,” generated by words such as skyde [shoot], jagt [hunt], bøssen [rifle], hare [hare],
captures passages from works as disparate as a chorographic work on Vendsyssel (a northern
Jutlandic region) and passages from Blicher’s collected short stories (Blicher 1907). Other
passages that appeared on the line included ones from works by Holger Drachman, J.P.
Jacobsen, the Norwegian Bjørnstjerne Bjørnson, and several other well-known authors.
Similarly, a topic on horses and wagons—a rural topic if ever there was one, confirmed by its
capture of passages from Jeppe Aakjær’s Vadmels folk (1919)—discovered several passages by
an interesting, yet somewhat obscure, hjemstavnslitteratur author, Jakob Nielsen (1830-1901).
Finally, another typical rural topic which we labeled “the minister,” defined by words such as

Leonard and Tangherlini 23
præst [minister], præstegården [parsonage], kjole [robes], krave [collar] and genganger [revenant],
not only discovers passages from Aakjær’s biographical work on Blicher (1904), but also
passages from one of the most important (and therefore most spectacularly forgotten) neoBiedermeier short-story writers, Sophus Bauditz (1850-1915). Bauditz’s fiction sold tens of
thousands of copies at a time when most Danish literature only sold in the low thousands,
and his audience was comprised largely of the emerging urban middle classes. Bauditz, in the
discovered passage from this novel, masterfully captures the urban middle class nostalgia for
an idyllic rural past that had never actually existed. In contrast to the reactionary Bauditz, the
topic also captured passages from Carl Ewald’s starkly realistic historical novel, Den største i
landet (1905). Ewald, whose ideological orientation was diametrically opposed to that of
Bauditz, was no stranger to folklore and the rural, having translated Grimm’s fairy tales and
rewritten Danish fairy tales and legends, in the belief that these stories could teach children
Darwin’s ideas about nature and evolutionary forces.
In a series of explorations focused on a twenty-year period that effectively covers the
main period of the Folk Breakthrough (1890-1910), the trawl discovers a remarkable series
of passages and works from largely unknown authors. So, for example, the topic, “Wild
Hunt,” identifies a passage from Gustav Wied’s Barnlige Sjæle (1893) in which Wied writes: “I
samme øjeblik, han vendte sig om, gik der en Gysen igemiem mig, en Gysen af Uhygge og
Medfølelse!” [At the same moment that he turned around, a shiver went up my spine, a
shiver of horror and compassion], capturing the eerie response that witnesses report in
legend’s about encountering the wild hunt. Wied is often considered to be a marginal figure
in the Modern Breakthrough, his authorship marked both by social critique and an emphasis
on rural motifs; it is thus fitting that even his relatively unknown works are caught on the
trawl line. The topic of reading the Danish black book, Cyprianus, provides a series of equally

Leonard and Tangherlini 24
interesting results, retrieving not only passages from Alfred Lehman’s historical work, Overtro
og Trolddom fra de ældste Tider til vore Dage (1896), but also from Bang’s Udvalgte Fortællinger
(1899), Aakjær’s short story “Hædersgaven” (1915), and Magdalene Thoresen’s (1819-1903)
lesser known short story, “Studenten” (1863). Perhaps most interesting is the discovery of a
passage from the long forgotten work Af Kains Slægt: En nutids fortælling (1899) by Axel
Thomsen (1875-1951), one of the most obscure writers of the Folk Breakthrough. The novel
was originally positively refereed for a press by the famous Modern Breakthrough author
Henrik Pontoppidan, but was essentially forgotten after its publication. Thomsen is
interesting precisely because he is no longer known, absent from most standard literary
histories and biographical encyclopedias, despite publishing sixteen works, most between
1919 and 1927, many of which include folkloric themes and descriptions of rural life.[12]
Modeling the folklore corpus is an excellent method for discovering literary passages
that deliberately attempt to capture aspects of peasant life even if the authors come from
wildly divergent ideological positions—this type of recall is difficult to reproduce in
traditional searches as those searches inherit the biases of the researcher. The relative lack of
bias in the topic modeling approach, conversely, produces intriguing results that include
passages from authors who reflect a broad range on the ideological spectrum. So, for
example, passages from Inger, the novel by Jacob Knudsen mentioned earlier, appear in a
topic related to serving maids, while a topic related to shooting identifies a passage from
Otto Rung’s early novel, Sidste Kamp. Although Rung is more known for his detective fiction
set largely in Copenhagen—and thus not a likely author to look to for descriptions of
Danish rural life—the largely ignored Sidste Kamp does indeed include such descriptions.
Similarly, a topic labeled “serpents,” discovers an unusual work on the animal world of the
fairy tale by yet another long forgotten schoolteacher authors of the Folk Breakthrough,

Leonard and Tangherlini 25
Ingvor Bondesen (1844-1911) [figure 4]:

fig. 4: The topic “serpents” and an identified passage in the forgotten work by
Bondesen.
Unexpected—and thus welcome—results are the norm rather than the exception in
STM.[13]
Conclusion
Literary history has a tendency to draw lines in the sand, distinguishing the
characteristics of one movement from another. As a result, literary movements are often
conceptualized in the context of sharp breaks, and authorships are often parceled out as
belonging to one movement or another. In our preliminary work described above, the
inadequacy of these distinctions becomes increasingly apparent. Although the polarizations
of “movements” might apply thematically or even stylistically to those “defining members”
of a school or a movement, the vast majority of artistic expression falls somewhere in
between. Similarly, clearly demarcated lines of distinction—Author X is a Romantic, Author
Y is a Naturalist, and so on—do not hold up to the scrutiny of hundreds or thousands of
examples. Rather, what becomes apparent from reading (or at least modeling) the Sea of the
Great Unread is that literary movements and counter movements are characterized by a

Leonard and Tangherlini 26
great deal of borrowing, overlap and intersection.
STM provides interesting insight—and the evidence to support that insight—into the
complexities of even relatively small literatures. In the past, thematic research questions were
often driven by a reading of the canon—for instance, how does Jacobsen characterize the
fight for survival? Similarly, historical research questions often built outwards from a center
of presumed communities of influence—how did the regional literature movement of the
last years of the nineteenth century and the early twentieth century recapitulate the
Naturalism of the Modern Breakthrough while incorporating aspects of nostalgia while
breaking with the Symbolists? STM allows for both of these approaches, while casting a
much wider net. Now, given a sub-corpus, be it the works of Darwin (hypothesized to have
significant influence on the Modern Breakthrough writers), the works of Jacobsen,
Schandorf and Drachman (hypothesized to be representative of the Modern Breakthrough),
or a large collection of Danish folklore (hypothesized to be inspirational for the Folk
Breakthrough), the researcher can discover passages that can help support or broaden their
understanding of these movements. Reversing the approach helps to illuminate another
important aspect of STM. By curating the topics modeled on the sub corpus, the researcher
becomes aware of topics that might now otherwise have informed the research. If the
algorithm had never suggested a topic, would one ever derive a series keywords that link
together material as disparate as criminology journals, university speeches and a novel
written by a priest? This type of recall—and the intellectual value added by this recall—can
only help broaden our understanding of the complexity of literary history.
Ultimately the researcher is responsible for fashioning raw bits of textual evidence
into a convincing argument that can stand on its own merits. In the past, Humanities
research has largely relied on arbitrary, albeit directed, methods of discovery: reading the

Leonard and Tangherlini 27
scholarly literature on the subject, combing through secondary sources, asking colleagues for
advice, relying on past experience and serendipity. Individual authors often escaped inclusion
in the canon (however defined), and as the years passed, the chances of their prose emerging
from darkened library shelves grew slimmer. With the emergence of larger and increasingly
comprehensive collections of machine-actionable texts, researchers can now access many
more works than before. At the same time, the large number of texts speaks of the need for
flexible finding aids. STM allows scholars to take advantage of their hard won domain
expertise and the long history of scholarship that exists in most fields, while wedding this
existing knowledge to methods for rapidly discovering potentially unknown or inadvertently
overlooked passages. As we illustrate in the preliminary experiments above, the results are
complicated and subject to interpretation and thus require the input of domain experts. The
experiments do reveal the ability of STM to increase recall for any given corpus without
sacrificing precision (indeed, the sub-corpus selection is based on the precise searches of
years past). Yet unlike keyword searches, these searches are easily reproduced. Consequently,
Humanities corpus discovery moves away from being a game of “gotcha” or one based on
access to one that takes advantage of domain expertise and the increased accessibility of
resources in a digital age.
In his 1871 essay “Menneskeslægtens Oprindelse” (The Origin of the Family of
Man), J. P. Jacobsen claimed,
If one accepts the teachings of evolution... then Man will no longer regard
himself as an exception from the laws of nature, but will begin notice these
rules in his own actions and thoughts, and strive to place his own life in
congruence with the laws of nature (Jacobsen 1871b).[14]
Jacobsen’s proposal that the laws of nature necessarily organize human behavior and society

Leonard and Tangherlini 28
given Man’s position as an inextricable part of nature had a significant impact on the Nordic
literary realm. But how far across the literary and intellectual realm did this influence reach,
and how far up into the twentieth century did these ideas echo? Are there authors—such as
the women identified by Dahlerup—who inflected these ideas in their authorship but for
various reasons were ignored or deliberately left out of the broader canon? Similarly, in the
aftermath of the Modern Breakthrough, as different literary movements took root, and the
access to the literary world became democratized, is it possible to discover commonalities
across the corpus related to a particular field such as folklore and normal people’s
descriptions of their everyday life? These questions are hardly unique to Nordic literature,
but rather address substantive issues confronting Humanities scholars as access to very large
corpora of digital texts becomes commonplace. STM can now be added to the fishing tackle
of Humanities scholars as they head out onto the Sea of the Great Unread.
______________________
Notes
Funding for this work was provided through a generous grant from the Google Books
Humanities Grant program. We would like to thank Jon Orwant at Google for his continued
support of our work. We would also like to thank our colleagues David Blei and David
Mimno for their comments and helpful suggestions regarding our work, particularly the
implementation of LDA. Portions of this work have been presented at the annual
conferences of the American Folklore Society (2011) and the Society for the Advancement
of Scandinavian Study (2011 and 2012).
[1] Google’s n-gram browser provides a simple version of this type of modeling—while it is
fun to play with, it has very limited usefulness in the study of literature (Michel et al, 2011).

Leonard and Tangherlini 29
[2] “Largely arbitrary” as matters of reception, sales, publication, circulation, critical reviews
and so on contribute significantly to the recognition of a literary work as exceptional. Those
works that have “staying power”—that are able to engage critics for a considerable period of
time—are those that enter the canon. At the same time, despite the impression of
immutability, the canon often changes radically over time so that unknown works can
suddenly become known (and canonical), while well known (and canonical) works can
suddenly fall out of favor and disappear from the canon altogether. Methods for predicting
works that are likely to enter the canon would be an intriguing addition to the tools available
for Humanities scholars working with these large and dynamic digital corpora.
[3] Extending this admittedly forced fishing metaphor, one can equate earlier, canonical
approaches to search as fly-fishing, where the fisherman deliberately selects lures that will
only entice fish that he already knows are in the river. Conversely, nonselective search can be
likened to tossing a stick of dynamite into a pond—all things that were in the pond float to
the surface, to be later sorted through. Our approach intends to lie somewhere in between.
[4] As we are not applied mathematicians, we allow others to explain the statistical methods
that undergird this approach (Ng, Blei and Jordan 2003).
[5] The STM trawl lines uses as hooks a measurement of topic saturation. The topic saturation
measurement algorithm calculates the degree of “saturation” (or match) between a sub-corpus
topic and a text chunk in the unlabeled corpus and returns a researcher-defined set of the
highest ranked passages (for these experiments, this limit was set at 200).
[6] Currently, topic model curation is done via a different interface.
[7] The Danish reads, “Vi ombytte Underets gamle Poesi med Lovbestemthedens nye Poesi,
vi byte en vilkårlig, overnaturlig personlig Styrelse med en klar Naturordning.”

Leonard and Tangherlini 30
[8] Using paragraphs as text chunks may not be optimal. Yet, it does recognize that, for most
writers, paragraphs tend to focus on a single topic.
[9] These are Darwin’s original English, the Danish translation rendered by JP Jacobsen in
1875 read: “Selskabelige Dyr blive tildels drevne af et Ønske om at hjælpe Medlemmerne af
samme Selskab i al Alminde lighed, men hyppigere til at udføre visse bestemte Hand linger.
Mennesket ledes af det samme almindelige Ønske om at hjælpe sine Medmennesker, men
har få eller ingen særegne Instinkter.” Jacobsen’s 1874 translation of the second quote reads,
“Jeg veed vel at Nogle hævde, at Handlinger, der udføres ifølge en øjeblikkelig Drift, således
som i det ovenfor nævnte Tilfælde, ikke have Noget med den moralske Følelse at gjøre og
ikke kunne kaldes moralske... Men det synes neppe muligt at drage nogen skarp
Grændselinie her, omendskjøndt der jo i Virkeligheden nok er nogen Forskjel. Hvad disse
ophøjede Motiver angåer, så har man mange Exempler på, at Vilde, der mangle enhver
Følelse af almen Menneskekjærlighed og som ikke ledes af nogen religiøs Bevæggrund, at de,
når de ere blevne tagne tilfange, med Overlæg have offret deres Liv hellere end at forråde
deres Kammerater; og denne deres Opførsel må ganske vist ansees for moralsk.”
[10] The Danish reads, “Ja, Ditlev, det er jeg nødt til. Og at det er æreløst, det vil I desværre
få stærkere og tydeligere at mærke med hver Dag, der går. Thi det er Samfundet, der alene
bestemmer, hvad der er Ære, og hvad der er Skam. I har krænket Samfundets Moral og
Love, sådan som de nu er; og det er det afgjørende, og må være det, med Hensyn til Ære og
Skam, — i hvor god en Samvittighed I end måskee i jeres Uvidenhed kan have haft.”
[11] In other work, we show how a multi-modal network model can be used to discover
improperly classified documents in a large folklore collection (Abello, Broadwell, Tangherlini
2012).

Leonard and Tangherlini 31
[12] He is included in Th. Lind’s Gyldendals forfatterleksikon (1914) and the membership rolls
of the Dansk forfatterforening [Association of Danish Authors] (1919), and in Dansk skønlitterært
forfatterleksikon 1900-1950 (Dahl and Engelstoft 1959-1964).
[13] Granted, there are some refinements that can be made to our net. Currently, the “Sea of
the Great Unread” includes works from many disciplines, and is not solely a collection of
unread fiction. Unfortunately, the metadata included with many “big data” collections is
insufficient to make a reasonable sort on fiction and non-fiction. Consequently, in our
current work, we have left the major collection unfiltered—this results in the “capture” of
many works that need to be thrown back.
[14] The Danish reads: “Antager man Afstamningslæren, saa vil Mennesket... ikke længere
betragte sig som en Undtagelse fra Naturlovene, men vil endog begynde at se efter det
lovmæssige i sine egne Handlinger og Tanker og stræbe efter at faa sit eget Liv i
Overensstemmese med Naturlovene” (Jacobsen 1871b, 121).

Leonard and Tangherlini 32
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Leonard and Tangherlini 37
Appendix: Technical Considerations
Danish orthography was in flux from the 1870s through the spelling reform of 1948.
In the closing decades of the nineteenth century, there is a gradual shift from using the
double-a to the a-ring (for example from haar to hår). Doubled soft vowels are reduced to
single vowels (veed to ved, riig to rig), and the letter j is dropped following k and g before e, ø,
and æ (kjær to kær). Though these spelling changes often affect only unimportant words
(prepositions such as paa/på, “upon”), we have normalized these variations in order to
extract as much usable information from the texts as possible. We also eliminated some
texts that were improperly recognized by Google’s OCR apparatus—many books published
in Denmark during this period were set in Fraktur (or Blackletter) type, mirroring German
practice. Although some of these texts were parsed correctly with a Fraktur-specific OCR
module, others clearly were processed by software expecting Latin letters with predictably
poor results. Additional preprocessing included removing hyphens at the end of lines that
divided words, and “chunking” the literary texts into rough paragraphs using a regular
expression. Though imperfect, these steps were necessary to provide consistent, granular
units of text.
The “STM dashboard” presented in some of the screenshots in this paper is a
prototype. It visualizes output from the Mallet machine-learning toolkit (McCallum 2002).
For the first and third experiments, we somewhat arbitrarily set the number of topics at one
hundred; for the second experiment, we set the number of topics at fifty. Future versions of
this tool will allow the researcher to generate topics at numerous levels of granularity, with a
concomitant increase in the recall of searches based on those various topics.