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

Filing 131

DECLARATION of Paul Aiken (Second) in Opposition re: 74 MOTION for Summary Judgment., 100 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward)

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  UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------X THE AUTHORS GUILD, INC., et al., Plaintiffs, - against - HATHITRUST, et al., Defendants. : : : : : : : : : : : : Index No. 11 Civ. 6351 (HB) ----------------------------------------------------------------X SECOND DECLARATION OF PAUL AIKEN I, Paul Aiken, hereby declare as follows: 1. I am the Executive Director of the Authors Guild, Inc. (the “Guild”), one of the plaintiffs in the above-captioned action. I have personal knowledge of the facts set forth in this declaration and could testify competently at a hearing or trial if called upon to do so. 2. I submit this declaration in opposition to the motions by Defendants and Intervenors for summary judgment and specifically to rebut the Intervenors’ suggestion that the Guild opposes making books, including those offered on the Kindle, available to the blind. Making Books Accessible to the Visually Disabled 3. The Guild (and authors generally) are strong advocates for making all books accessible to everyone. For decades, through its publications and book contract seminars, the Guild has informed new authors that the expected and proper thing to do is to contractually donate rights so that their works can be accessible to the blind.   4. Consistent with this goal, the Amended Settlement Agreement entered into a proposed settlement of the Google Books case (the “ASA”), announced on October 28, 2008 (“Proposed Settlement”), included, among many other benefits, terms that would have provided readers with print disabilities special access to the digitized library books, including access using “screen enlargement, voice output, or refreshable Braille” technologies. See ASA § 7.2(b)(ii), a copy of which is attached as Exhibit A to my initial declaration submitted in support of Plaintiffs’ motion for summary judgment. 5. In order to provide access to readers with print disabilities while protecting vital markets for books, the ASA restricted this special access to accommodate “the needs of certified users with Print Disabilities as required by applicable federal or state law and regulations” and prohibited the uses by others, except for those assisting readers with print disabilities. Id. § 7.2(b)(ii)(3). 6. The ASA tracked existing federal and state law and regulations by requiring prior certification of a reader’s print disability before special access would be provided to the digitized books. Except in special circumstances, such certification was to be made by a “Competent Authority.” Id. § 7.2(b)(ii)(1). The ASA defined “Competent Authority” by reference to federal and state law and regulations, and the procedures of the Library of Congress’s National Library Service for the Blind and Physically Handicapped: “Competent Authority” means an individual who is employed in one of the professional occupations that is qualified to diagnose Print Disabilities under the federal law and regulations that govern the National Library Service for the Blind and Physically Handicapped or is licensed or otherwise certified or authorized under applicable state law or regulations to diagnose the existence of a Print Disability pursuant to standard and generally accepted methods of clinical evaluation. Id. § 1.29.   2 7. Three days after the announcement of the Proposed Settlement, Intervenor The National Federation for the Blind (“NFB”) praised the agreement for accommodating users with print disabilities. Dr. Marc Maurer, NFB President, said the agreement would “revolutionize access to books for blind Americans.” He commended “the parties to this agreement for their commitment to full and equal access to information by the blind.” The NFB press release is attached as Exhibit A. 8. Four months later, in February 2009, Amazon announced that its forthcoming Kindle 2 e-reading devices would allow it to market audio versions of e-books through Amazon’s use of voice output (or text-to-speech) technology. It was clear that Amazon did not intend that Kindle 2’s voice output technology would be used by blind readers — the keyboard was not usable by most blind readers. 9. The Amazon announcement was troubling for the Guild because authors frequently license exclusive audio rights to their works separately from the print and e-book rights to their works. Many authors earn substantial income from their audio rights and at that time, the audiobook market was larger than the market for electronic books. 10. Amazon had not been authorized by authors or publishers to market audio versions of e-books. The Guild protested Amazon’s unilateral decision to distribute audio versions of e-books, believing Amazon was seizing to appropriate authors’ rights without permission or compensation and to deepen its extraordinary hold on the fledgling e-book market. Roy Blount Jr., the Guild President at the time, published an op-ed in the New York Times objecting to Amazon’s audio rights grab on February 25, 2009. That op-ed, “The Kindle Swindle,” is attached as Exhibit B. 11.   A few days later, Amazon announced that it would allow publishers to opt out 3 of having audio versions of their e-books played on Amazon’s e-reading devices. 12. In discussions with Intervenor NFB and others following these events, the Guild made clear that it would support making e-readers with text-to-speech technology available to readers with certified print disabilities, following existing federal and state laws and regulations and procedures such as those used by the Library of Congress’s National Library for the Blind and Physically Disabled. A press release describing the Guild’s position dated April 7, 2009, is attached as Exhibit C. 13. On September 10, 2009, I testified before a subcommittee of the House Judiciary Committee regarding the ASA with Google. That panel included Google’s attorney and Dr. Marc Maurer of the NFB. The NFB’s press release about Dr. Maurer’s testimony is attached as Exhibit D. 14. In his testimony, Dr. Maurer reiterated the NFB’s praise of the ASA, even though it continued to require certification of a reader’s print disability before special access would be provided to the digital books. Security of the Databases of Digitized Books 15. Critical to the Guild’s agreement to the ASA, which would, among its many benefits, have provided access to readers with print disabilities, was that the digital book databases would be subject to rigorous, financially enforceable security protocols. The Guild saw the security of the databases of copyright-protected, digitized books — particularly those maintained by the university libraries — as one of its highest priorities in any settlement. 16. The ASA required university libraries wanting to host these databases of the digitized books to agree to a set of security protocols regarding those databases (collectively, “University Library Security Protocols”).   4 17. The University Library Security Protocols required that each university library hosting copyright-protected, digitized books agree to a Security Implementation Plan meeting standards set forth in approximately 15 pages of the Security Standard attached to the Proposed Settlement. See ASA, Art. VIII and Attachment D. 18. Those standards discuss, among other vital database security matters, local and remote network security, firewalls, security testing, user identification, user access, incident logging, data storage and encryption protocols. 19. The University Library Security Protocols were subject to audit and, crucially to the Guild — because state universities can generally avoid financially responsibility for copyright infringement under the doctrine of sovereign immunity — an agreement to and assessment against the universities of damages of up to $300,000 per incident for inadvertent breaches, up to $5 million per incident for reckless breaches, and up to $7.5 million per incident for willful breaches. Id. § 8.5. 20. To help assure that regular audits would be conducted confirming that the universities were abiding by the University Library Security Protocols, the Guild negotiated for Google to contribute matching funds of up to $200,000 per year to the costs of those audits. Id. § 8.2(c)(ii). 21. On October 28, 2008, Defendants University of Michigan and University of California issued a joint press release (“University Press Release”), along with Stanford University, endorsing the “outstanding public benefits made possible through the proposed settlement agreement.” The University Press Release, attached as Exhibit E, listed eight “important benefits to higher education,” including “accommodated services for persons with print disabilities.”   5 22. The University Press Release acknowledged that the three universities had “been negotiating for almost two years with Google and the plaintiffs to shape this agreement for the public good,” and that to fully participate in the ASA the universities must “negotiate and execute amendments [to their library digitization agreements with Google] that reflect the terms and conditions” described in the ASA. Those “terms and conditions” included the auditable and financially enforceable University Library Security Protocols. 23. The University Press Release concluded by noting that “each university is working toward” executing those contractual amendments “and expects to participate in the project under the proposed settlement.” 24. On May 20, 2009, Defendant University of Michigan signed that contractual amendment, thereby agreeing, among other things, to the University Library Security Protocols. Attached hereto as Exhibit F is a UM’s press release announcing signing of the agreement. 25. The NFB’s suggestion that the Guild opposes increased access for the blind is baseless. The Guild actively negotiated an agreement that would, as the NFB said, have “revolutionize[d] access to books for blind Americans,” while it addressed the Guild’s critical concerns over the security of the universities’ databases of digitized books, and opened up new markets for literary works. The Guild’s concern over the text-to-speech technology used in the Kindle 2 had nothing to do with opposing access to the blind, and everything to do with Amazon’s efforts to use its monopolistic control of the e-book market to appropriate another important market, without the consent of authors or publishers.   6

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