The Authors Guild, Inc. et al v. Hathitrust et al
Filing
76
RULE 56.1 STATEMENT. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
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THE AUTHORS GUILD, INC., et al.,
:
Plaintiffs,
v.
:
Case No. 11-cv-6351(HB)
:
HATHITRUST, et al.,
:
Defendants.
:
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LOCAL RULE 56.1 STATEMENT OF UNDISPUTED FACTS
I.
Background on HathiTrust Digital Library
1.
The HathiTrust Digital Library (HDL) is a service run by the University of
Michigan that stores and preserves the digital library collections of over sixty institutions
worldwide, including the University of California, Indiana University, University of Wisconsin,
and Cornell University, to provide more secure, long-term storage for the works, more
comprehensive research and discovery tools, improved access to works in the public domain, and
improved access to works for students and faculty with print disabilities. (Decl. of John Wilkin,
June 28, 2012, (hereinafter “Wilkin Decl.”) ¶¶ 55-56.)
2.
The combined corpus of the HDL now totals more than 10 million works and is
growing daily. (Wilkin Decl. ¶¶ 57.)
3.
The HDL contains works in dozens of subject matters, written in more than forty
languages, and spanning a time period from before the Fifteenth Century to today. The vast
majority of the works in the HDL were published before 2000. (Wilkin Decl. ¶¶ 60-62.)
4.
The vast majority of works in the HDL corpus are out of print and have been out
of print for decades. (Wilkin Decl. ¶ 66.)
5.
In 2008 the University of Michigan completed the infrastructure to begin to make
the HDL available to blind students, making it the first library collection that is fully accessible
to the blind. (Decl. of Dr. Marc Maurer, June 27, 2012, (hereinafter “Maurer Decl.”) ¶ 14.)
6.
A large portion of the titles included in the HathiTrust have been digitized
through the University Defendants’ collaboration with Google, in which Google converted the
hardcopy books from each library into digital formats and provided copies of those files to the
participating universities. (Wilkin Decl. ¶¶ 46, 52.)
II.
Background on the Defendant Intervenors
7.
The National Federation of the Blind, a civil rights organization founded in 1940,
believes that there are effective nonvisual alternatives for most educational, quotidian and
workplace tasks and that with equal opportunity, the blind can be full participants in all aspects
of society. Today, the National Federation of the Blind, with affiliates in all 50 states, Puerto
Rico, and the District of Columbia, consists of more than 50,000 blind people, their family and
friends. (Maurer Decl. ¶ 6.)
8.
Georgina Kleege is legally blind. She is a Lecturer in Creative Writing and
Disability Studies and a member of the English Department at the University of California,
Berkeley. She previously was an Adjunct Professor at the Ohio State University. When she
wishes to read books from the Berkeley library, she must scan each page and run it through
optical character recognition software. As a result, she rarely borrows print materials from the
library. The lack of accessible print materials has affected her education and career. Although
she was very successful as an undergraduate student at Yale University, she spent a significant
amount of time searching for human readers to help her complete her coursework. Because of
the time constraints involved with finding readers, her professors discouraged her from pursuing
a Ph.D. (Decl. of Georgina Kleege, December 5, 2011, ¶¶ 2, 3, 5, 6. (Abelson Decl. Ex. D)
9.
Blair Seidlitz is legally blind and is pursuing a degree in Engineering Physics at
the University of Wisconsin, Madison. To borrow books from the Wisconsin Library, he must
photocopy all the pages he wishes to read and scan them with his Kurzweil scanner. Because
this process is time consuming, he avoids borrowing books from the library. He cannot access
the supplemental materials for his classes that his sighted classmates can access. (Decl. of Blair
Seidlitz, December 6, 2011, ¶¶ 3-7 (Abelson Decl. Ex. E).)
10.
Courtney Wheeler is legally blind and is a student at the University of Wisconsin,
Stout. She is pursuing a bachelor’s degree in Psychology. To access books from the University
of Wisconsin Library, she brings her husband or a friend as a reader. As a result of this timeconsuming process, she chooses not to take elective classes that require research papers. She has
petitioned unsuccessfully in the past for exemptions from conducting library research as an
accommodation for her disability, but she would prefer to have the opportunity to have access to
library materials to the same extent and at the same time as her sighted classmates. (Decl. of
Courtney Wheeler, December 6, 2011, ¶¶ 3,4, 6-8 (Abelson Decl. Ex. F).)
III.
What makes a Digital Book Accessible to the Blind
11.
Prior to the development of accessible digital books, the blind could access print
materials only if the materials were converted to braille or if they were read by a human reader,
either live or recorded. These alternative formats were only available through separate libraries
for the blind. (Decl. of George Kerscher, June 28, 2012, (hereinafter “Kerscher Decl.”) ¶ 19;
Maurer Decl. ¶ 8.)
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12.
The technology of accessible books has advanced far past the capabilities offered
by human narration, making human narration alone substantially inferior to use of accessible
digital books. (Kerscher Decl. ¶ 20.)
13.
To use a live human reader is expensive or burdensome for a family member or
friend. Moreover, live readers’ orations cannot be reproduced, giving the blind reader only one
opportunity to hear the material. Live readers also cannot increase their speed – they are
inherently limited to the pace they can reasonably read aloud. (Kerscher Decl. ¶ 20.)
14.
Recorded human narration resolves some of these issues, like repetition and speed
(and reader exhaustion), but presents its own problems. Typically, it will take six months to
more than a year for a blind person to receive a requested recording of a textbook. Moreover,
even recorded human narration cannot be navigated like an accessible digital book and will not
allow a reader to hear each character to discern spelling. (Kerscher Decl. ¶ 20.)
15.
Today, blind readers access digital books with a screen reader or built-in text-tospeech software, both of which can output information either as a computerized vocalization of
the text or as braille, through a refreshable braille pad. Unlike books narrated by human readers,
accessible digital books can be read as quickly as the reader wants, or even skimmed. Further,
they provide significant search and navigation capabilities, allowing readers to jump from
chapter to chapter, paragraph to paragraph, and sentence to sentence, as well as to discern
spelling. This allows blind readers to re-read certain sections of a work they might not grasp on
the first pass, just as a sighted reader may re-read a complicated passage. (Kerscher Decl. ¶ 21.)
16.
The proliferation of digital information and technology held great promise for the
blind. But, not all digital information is accessible. For example, scanning a copy of print
material usually results in a file in portable document format (PDF). PDFs are created
essentially by taking a picture of the page. This gives a sighted person enough to read on a
computer screen, but it does not allow screen reader software to recognize the text. (Kerscher
Decl. ¶ 22; Maurer Decl. ¶ 18.)
17.
To take this next step toward accessibility, the scan must be run through optical
character recognition software (OCR) and optical structural recognition software (OSR).
OCR/OSR software takes a high resolution image of the page and recognizes the image of
characters and even structural data like columns and images. Character recognition software
looks at the characters and compares them to a database of what it knows. For example, the
software will match an image of the letter “c” to image of the letter “c” in its database. The
software will also check spelling, to ensure it has matched the image correctly to images of
characters in known words. The OSR component will recognize word boundaries, text block
boundaries, and, on occasion, headings. The software then identifies the x/y coordinates of all
the characters on a page and attempts to identify the correct reading order for each page, when
there are columns or images that alter the usual reading order. The OCR process also allows the
text to be searched. (Kerscher Decl. ¶ 23.)
18.
A further step called “tagging” provides additional metadata about the content,
such as the existence of tables in a work or the existence of headings and other document
3
structures. Although the OCR engine will try to add meaningful style information, no existing
software can recognize document structures perfectly and this final step must be completed
manually. Only materials that are originally created for digital books, or “born digital,” rather
than scanned from print material do not have to be manually tagged. Tagged works provide to
blind readers the closest equivalent to the experience of a sighted person reading the material in
its print form, but the labor required to create them has made them very rare. (Kerscher Decl. ¶
24.)
19.
Accessible digital texts present a further benefit for low vision readers over
human narration alone. These users often will use print and sound at the same time. They may
be able to visually discern paragraphs or chapters while using sound to read characters and
words. Human narration therefore is substantially inferior for low vision readers who have some
usable vision. (Kerscher Decl. ¶ 25.)
20.
Even what are commonly referred to as “audiobooks” do not provide the benefit
of accessible digital books. While having Jim Dale or Stephen Fry read Harry Potter and the
Order of the Phoenix is ideal for entertainment purposes, it does not provide equal access for
academic or scholarly pursuits. The ability to access text at high-speed is crucial for students
and researchers alike—accessible digital books make high-speed access possible, where
audiobooks cannot. Digitally accessible books make it possible for readers with print disabilities
to “virtually” bookmark a page, to electronically jot notes in the margin, and to digitally riffle
through pages to “scan” for just the right passage. While there was a time where a book read
dramatically or even non-dramatically by a human was the best users with print disabilities could
hope for, advances in technology mean audiobooks do not equal (and are vastly inferior to)
OCR’ed books in the modern era. (Kerscher Decl. ¶ 26.)
21.
The DAISY Consortium, an international association that develops, maintains and
promotes international DAISY (Digital Accessible Information System) Standards for authorship
and distribution, and the International Digital Publishing Forum (IDPF), which is the global trade
and standards organization dedicated to the development and promotion of electronic publishing
and content consumption, have established standards to ensure that “born digital” material is
accessible. Any digital copy of print material that is created to meet the DAISY standard will be
fully accessible to the blind. (Kerscher Decl. ¶¶ 14, 27.)
22.
The IDPF develops and maintains the EPUB content publication distribution
standard, which is a generally available open standard, available without royalty, for the next
generation of commercial and non-commercial digital books. The standardization of a
distribution file means that publishers can design their print materials using any authorship tool,
convert them to an EPUB file, and then provide that file to any e-book distributor, which will be
able to publish the content on whatever platform it uses. (Kerscher Decl. ¶ 28.)
23.
The latest EPUB standard, EPUB 3, incorporates the current DAISY requirements
for distribution, which ensures that all documents published using EPUB 3 that follow the
accessibility guidelines will be distributed in an accessible format, unless publishers then convert
the EPUB files to platforms that are themselves inaccessible. (Kerscher Decl. ¶ 29.)
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IV.
Historical Lack of Access for the Blind to Library Collections
24.
It is virtually impossible for blind students to conduct library research in a
traditional print-based library. A university’s disability student services office (DSS) is
responsible for scanning print materials and converting them into accessible digital copies for
blind students, but the vast majority of these offices will only provide the works listed on the
students’ syllabi. DSS offices generally do not have the resources to create copies of books that
are not required reading, and certainly not do so in a timely manner. As a practical matter, this
means it is impossible for blind students to conduct independent library research. Even when a
student switches classes or a professor adds a reading to the syllabus after the fact, DSS offices
are often overwhelmed and unable to fill the requests. It may take weeks or even months for the
student to receive the scanned materials. (Kerscher Decl. ¶ 32; Maurer Decl. ¶ 10.)
25.
The quality of the copies made by the DSS offices varies substantially from
university to university. In the vast majority of cases, the scans will only be run through very
basic OCR software, without any of the structural recognition in the HathiTrust Scans.
(Kerscher Decl. ¶ 33.)
26.
Indexes and tables of contents are not available in an accessible format in almost
any university library. Thus, blind students cannot view the index or table of contents of a book
to see if it contains relevant information. (Kerscher Decl. ¶ 34.)
27.
At the universities with the best DSS offices, a graduate student may be able to
provide a list of materials for research that the office then will have the capacity to digitize. The
office, however, is limited to the books the student initially identifies as relevant. Blind students
cannot do what sighted students do, that is, browse through many books to find the chapters or
sections that are relevant. (Kerscher Decl. ¶ 35.)
28.
At the vast majority of universities, where the DSS offices do not have the
capacity to honor requests for research materials, a blind student’s only option is to use a scanner
in the library to scan individual books of possible interest one page at a time, listening to each,
until he or she finds the tables of contents. It is an impossible task for a blind student to use a
library in this way; the time it would take to complete this process prohibits blind students from
completing any library research at a pace at which they can compete with their sighted peers.
(Kerscher Decl. ¶ 36.)
29.
Besides universities’ DSS offices, the only accessible digital books available are
those available for purchase as iBooks or Blio books, and the collections of Learning Ally,
Bookshare, and the National Library Service for the Blind and Physically Handicapped (NLS),
three non-profit entities that create accessible books for the blind on an ad hoc basis. (Kerscher
Decl. ¶¶ 13, 37; Maurer Decl. ¶ 9.)
30.
Learning Ally, Bookshare, and the NLS have a very limited capacity to make new
books. Learning Ally and the NLS focus their limited resources on particular titles with the
greatest appeal. NLS focuses on novels and other current popular works. Learning Ally and
5
Bookshare place an emphasis on K-12 education. Although they do digitize some books for
higher education, both have very limited budgets. (Kerscher Decl. ¶ 38; Maurer Decl. ¶ 10.)
31.
Learning Ally has approximately 70,000 titles in its collection, Bookshare has
approximately 150,000 titles, and the NLS has approximately 20,000 titles. These include many
that overlap. In total these organizations have approximately 200,000 titles available to blind
readers. (Kerscher Decl. ¶ 38; Maurer Decl. ¶ 10.)
32.
The vast majority of new books in the Bookshare collection now come directly
from publishers in digital formats such as XML. Close to 200 publishers share these digital files
with Bookshare. To make these books accessible can be done automatically in a few minutes.
The books that are available in XML formats are heavily weighted to trade books, including
genre fiction, New York Times best sellers, romance novels, science fiction, mysteries, political
commentary, religious books, and other books with mass-market appeal. They also typically
include only books published in the last ten years, since e-books have become widely available,
because publishers have focused on digitizing only that part of their backlist they think can sell
enough books to justify the effort. (Decl. of James Fruchterman, June 28, 2012, (hereinafter
“Fruchterman Decl.”) ¶ 16.)
33.
For books that are not available in digital formats directly from the publishers,
Bookshare obtains the books in physical form and will chop, scan, OCR, and proofread them to
make accessible copies. Bookshare used to do this for any books sent to it by members with
disabilities, but Bookshare does not currently have the resources to do this kind of laborintensive work for books that are not directly used in the classroom, because of the priorities of
our funders. (Fruchterman Decl. ¶ 17.)
34.
Although Bookshare gets requests from university students and scholars to scan
print books for their research, but it is not able to fulfill these requests because it does not have
the resources to scan their books. Bookshare will only process requests for students in accredited
programs in the United States who are working toward degrees, and currently only then if the
books requested are assigned or required classroom reading. Bookshare does not have the
capacity to make university library books more generally accessible because they are rarely
assigned. It does not have the resources to honor requests for digitization of books that a student
or scholar wants to use as background research for a research paper or article. (Fruchterman
Decl. ¶ 20.)
35.
The largest part of Bookshare’s budget comes from the United States Department
of Education, which funds Bookshare’s efforts to create accessible copies books for students
with print disabilities, with the highest priority on K-12 textbooks. (Fruchterman Decl. ¶ 21.)
36.
Bookshare’s average cost of creating an accessible book is $40 per book. This
average cost includes the proofreading for scanned books and creating the metadata for all
books, including those that provided to us in digital form. (Fruchterman Decl. ¶ 23.)
37.
Once Bookshare has a digital copy of a book, the cost of making it accessible
varies enormously based on the complexity of the layout of the books. Bookshare must
6
proofread the text to ensure it is correct and books that have headers, footers, footnotes or other
graphic features that change the reading order of the page must be tagged and properly structured
to make them understandable and functional for a blind person using screen access software.
Lastly, books that have images that are important for educational purposes should have image
descriptions added, something that we don’t have the budget to create for any but the most
widely used K-12 textbooks. Because the U.S. Department of Education has made image
descriptions in K-12 textbooks a policy priority, Bookshare must devote a significant portion of
the Department of Education resources to adding image descriptions to this subset of the books
in its collection. (Fruchterman Decl. ¶¶ 24, 28.)
38.
Bookshare divides books into six levels based on their complexity. Level 1 books
have no headers, footers, or pictures. Level 2 books have headers or footers and low-level
formatting, such as chapters. Level 3 includes books that have images, footnotes, or line breaks,
including children’s chapter books, plays, and poems. Level 4 books have many images or
charts, resource listings like bibliographies, insets, many foreign language words. Level 4
includes textbooks that are mainly text but have chapters. Level 5 books have complex layouts,
including text in margins or text printed on image backgrounds. Level 6 includes the most
complicated books, such as math or science texts, cookbooks or dictionaries. (Fruchterman
Decl. ¶ 25.)
39.
Level 1 books cost, on average $50 per book to make accessible. Level 3 and
Level 4 books average more than $350 per book and Level 5 and Level 6 books cost
progressively more to make accessible. The majority of books available in a university library
would qualify as Level 3, 4 or 5 under Bookshare’s complexity classifications. (Fruchterman
Decl. ¶¶ 26-27.)
40.
The AccessText Network, a membership exchange network that is intended to
facilitate and support sharing of textbooks for students with diagnosed print-related disabilities,
has had limited success and has only focused on textbooks identified in the syllabi of students.
The Network is intended to connect DSS offices directly with publishers to receive electronic
files and facilitate the sharing of scanned copies between DSS offices at different universities.
(Kerscher Decl. ¶ 39.)
41.
The AccessText Network involves voluntary participation and neither have
publishers joined as expected, nor have DSS offices shared their files at the rates the founders of
the network had hoped. Further, the network does not have a quality control mechanism to
ensure that texts scanned by different DSS offices have the necessary structure and content. In
addition, it is limited to textbooks and required items in syllabi, and therefore does not include
the vast majority of titles available in a university library. (Kerscher Decl. ¶ 39.)
42.
V.
CONFIDENTIAL (REDACTED)
Access for the Blind to the HDL
43.
Since it began creating a digital library in 2004, the University of Michigan has
maintained a commitment to enabling students and scholars with print disabilities to make
7
unprecedented and meaningful use of the library’s vast collection. As early as 2005, the
University of Michigan had envisioned a system in which blind and print-disabled students
would have full access to a digital library through a process in which the university certified their
disabilities. (Kerscher Decl. ¶ 30; Maurer Decl. ¶ 13; Wilkin Decl. ¶¶ 103-04.)
44.
One of the primary goals of HathiTrust has always been to enable people who
have print disabilities to access the wealth of information within library collections. The
University of Michigan constructed the archive with the objective of making the world’s first
accessible research library. Access for people who have print disabilities is a part of
HathiTrust’s agreements with HathiTrust members and it is one of the core services around
which the archive is built, along with preservation and search. (Wilkin Decl. ¶ 100.)
45.
The HathiTrust scans are high resolution images that have been digitized very
sophisticated OCR/OSR. Although images are not described and tables are not tagged, the table
text is present, and the scans include the vast majority of metadata necessary to make them fully
accessible to the blind. They can be navigated by chapter, page, line, and character. (Kerscher
Decl. ¶ 30.)
46.
In the HDL, most of the tables of contents have been manually tagged, allowing
blind students to recognize them and navigate to them with a screen reader the way a sighted
person would open the book and flip to the table of contents. (Kerscher Decl. ¶ 34.)
47.
The HDL is currently available to students and faculty at the University of
Michigan who have print disabilities. It works in the following way:
•
A person who has a print disability seeks certification from a qualified expert.
•
The expert informs the library when a particular patron has a print disability for
which digital access is a reasonable accommodation.
•
The University of Michigan Library explains the digital library to the patron,
describes appropriate uses of the service (including warnings about copyright
infringement), and enables the patron to get secure access to the accessible library.
•
If the University of Michigan has a digital copy of a work, the authorized patron with
a print disability will have immediate access to that work in a format that can be made
accessible through a variety of adaptive technologies. For example, the disabled user
can enable software that translates the text into spoken words. (Wilkin Decl. ¶ 105.)
48.
Today, for scholars and students with print disabilities, the best promise of
meaningful access to an academic library exists at the University of Michigan through the HDL.
It is the kind of access, at the minimum, that should be available to all in the academy. (Kerscher
Decl. ¶ 40; Wilkin Decl. ¶ 106).
49.
The HathiTrust scans would do far more than increase exponentially the textual
information available to the blind; it would transform the opportunities for blind students and
8
scholars to conduct research independently—a critical aspect both of modern education and the
development of new ideas. (Maurer Decl. ¶ 11.)
50.
VI.
CONFIDENTIAL- ATTORNEYS’ EYES ONLY
(REDACTED)
Market for accessible university library books
51.
For more than 20 years, the National Federation of the Blind has vigorously
worked to ensure that digital information is rendered accessible on devices that are accessible.
(Maurer Decl. ¶ 15.)
52.
Learning Ally, Bookshare and the NLS all struggle to find charitable funding
because there simply is no market for accessible books for the blind. These organizations exist
because of this market failure. (Kerscher Decl. ¶ 41; Maurer Decl. ¶ 9).
53.
In the 1980s, when DOS was first introduced, equal access by the blind to digital
information was simpler. In those days, computer screens displayed text and screen access
software simply read aloud the text information and navigational markers, such a paragraphs and
page numbers, behind the screen. When DOS was overtaken by Windows, the blind lost much
of the access they had previously achieved. The NFB fought and worked with developers to
ensure that Windows technology would be compatible with screen access and, though Windows
is now accessible, the blind continue to face barriers when developers create inaccessible
websites, software programs, and now, mobile applications. (Maurer Decl. ¶¶ 15-16.)
54.
Authors and publishers have not only ignored accessibility concerns related to
digital texts, but actively worked to prevent the market from reaching the blind. When Microsoft
created the first commercially available e-reader device in the late 1990’s, Microsoft and its
competitors, Adobe, Gem Star, Sony, and others, ignored persons who are blind or print
disabled. They did not build in any accessibility features that a blind person could use. While
the underlying content was accessible, the user interfaces did not cater to the disabled
community. (Kerscher Decl. ¶ 43; Maurer Decl. ¶ 20.)
55.
All the companies that were developing e-books in the 1990’s indicated that the
effort to make the products accessible did not justify the return on investment. They consciously
decided that the work to modify software to make it accessible to the blind was not economically
worthwhile in light of the perceived small incremental addition of the blind to the market. They
recognized that people with disabilities would be left out, but they were not willing to develop
mechanisms for the blind to access the underlying information. (Kerscher Decl. ¶ 44).
56.
As, over the years, the e-book marketplace grew, publishers and authors
continued to exclude the blind by adding digital rights management software that further locked
the content for use on inaccessible devices. Publishers and distributers have been more
concerned about possible piracy if books were made accessible to screen access software than
they have been about the benefits of making a mainstream e-book marketplace accessible.
(Maurer Decl. ¶¶ 21, 23.)
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57.
New books can be made accessible with little expense to publishers. All new
books are created digitally. However, the design software commonly used by publishers takes
the accessible word processing files submitted by authors and converts them into an inaccessible
format. (Kerscher Decl. ¶ 48.)
58.
The development of popular e-book platforms that are inaccessible, like the
Amazon Kindle and the Barnes & Noble Nook, also demonstrates that tech companies and
publishers do not believe that there is sufficient economic benefit from making accessible books,
or at least that their perceived concerns about possible piracy outweigh, from a business
perspective, any monetary or societal benefits from creating accessible books. (Kerscher Decl. ¶
45; Maurer Decl. ¶ 38.)
59.
The NFB attempted to lobby Amazon to make the Kindle 2 accessible, but
encountered opposition from copyright owners and their allies. The NFB met with
representatives from Amazon, presented statistics concerning the market for talking e-books for
both blind and sighted computers, and demonstrated the minimal cost associated with making
both the text of the books and the menus on the Kindle accessible for people with print
disabilities. But, when Amazon announced that it had released the Kindle 2 with a text-tospeech function, the Authors Guild actively opposed Amazon’s policy, and Amazon capitulated,
allowing individual publishers to turn off text-to-speech on the Kindle for, at their selection, all
or some of their booklist. (Kerscher Decl. ¶ 46; Maurer Decl. ¶¶ 25, 27-28.)
60.
Even when Amazon activated the text to speech function on the Kindle, it only
worked for the text of the book, not the menus that allow readers to turn on the text-to-speech
function, purchase books, select the books they want to read, or start stop or otherwise navigate
through a book. Blind users therefore cannot effectively use a Kindle book. Amazon’s failure to
make these minimal changes in its platform demonstrates that it does not consider the blind to be
a significant market. (Kerscher Decl. ¶ 47; Maurer Decl. ¶ 26).
61.
After the Authors Guild protested Amazon’s use of text to speech for Kindle
content and Amazon announced that it would modify its system so that authors and publishers
could turn off text to speech on a title-by-title basis, the NFB quickly worked to convene a
coalition of disability groups, the Reading Rights Coalition, representing the more than 15
million Americans with print disabilities. The Coalition grew to include more than 30 national
and international organizations. (Maurer Decl. ¶¶ 28-29.)
62.
The Reading Rights Coalition initiated a dialogue with Paul Aiken, executive
director of the Authors Guild, to discuss the effect of its actions on the print-disabled community
and the market benefits that would flow to the authors if it welcomed the 15 million new
customers who cannot consume or easily consume print books. (Maurer Decl. ¶ 31.)
63.
In response Mr. Aiken proposed a separate registration system for people with
print disabilities, whereby a blind or print-disabled person would register as disabled and receive
a code that would override the disablement of text-to-speech on the Kindle 2. (Maurer Decl. ¶
32.)
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64.
The Reading Rights Coalition explained to the Authors Guild why a registration
system is an unworkable and unacceptable solution. Mr. Aiken responded, offering the
possibility of making text-to-speech e-books available at an additional cost. The Coalition
unanimously agreed that a “disability tax” was also not an acceptable solution and declined to
offer any other proposals. (Maurer Decl. ¶ 33.)
65.
After the NFB organized a protest of the Authors Guild’s headquarters in New
York and put together a petition with thousands of signatures demanding that text to speech
remain available, the White House issued a statement with agreement from the NFB, the Authors
Guild and AAP that digital books should be accessible. However, two publishers continued to
keep the text to speech turned off for the content of their books. (Maurer Decl. ¶¶ 34-35.)
66.
In 2007 the Association of American Publishers presented the results of a study
that determined that there was no exploitable market for the creation of accessible print materials
for the blind. (Kerscher Decl. ¶ 42.)
67.
The Access Text network was established because there was deemed to be no
meaningful market in the blind and print-disabled community. That publishers are expected to
give away the electronic files for free demonstrates that those involved do not believe there is
any market for accessible books created for the blind. (Kerscher Decl. ¶ 39.)
68.
In May 2009, Amazon released the Kindle DX without adding any accessibility
for the blind. Amazon marketed the Kindle DX as an e-book reader for academic and student
use. Six universities announced a pilot program in which they would deploy the inaccessible
Kindle device to students. The NFB filed a federal court complaint against Arizona State
University and administrative complaints against the other universities with the Departments of
Justice and Education against the universities for violating their obligations under the Americans
with Disabilities Act and Section 504 of the Rehabilitation Act. Five of these complaints and the
lawsuit ended in agreements to terminate use of the Kindle DX and to prohibit future programs
involving inaccessible e-book reading technology. (Maurer Decl. ¶ 36.)
69.
While Amazon later released the Kindle 3 with some additional accessibility
features, it still lacked the navigational facility required to make the device usable. Subsequent
e-reader devices released by Amazon, including the Kindle Fire, are completely inaccessible to
the blind. (Maurer Decl. ¶ 37.)
70.
The DAISY standard and partnerships between advocates for the blind and the
publishing industry have generated some progress in building accessibility into new e-books.
Adobe Indesign 6, the premier electronic publishing design software, exports into EPUB 3,
which makes the basic text accessible. But, these new EPUB materials may still be made
inaccessible if they are transformed for use with inaccessible platforms, such as those used on the
Amazon Kindle or the Barnes and Noble Nook. (Kerscher Decl. ¶ 49.)
71.
For the last three years, Benetech has employed one person whose full time job is
recruiting new publishers to contribute digital books to Bookshare’s collection. It has been
Bookshare’s experience that textbook publishers and commercial academic publishers are the
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most reluctant to contribute to the Bookshare collection; when they do agree to provide digital
files, they place more restrictions on our access to the files than trade publishers do.
(Fruchterman Decl. ¶ 29.)
72.
Given the lack of a market in the blindness community even for new popular
books, and the publishers and technology companies’ persistent refusal to make their products
accessible to the blind, the access problems faced by blind readers with respect to academic
library collections are unlikely to ever be solved unless the HathiTrust is permitted to continue
providing accessible digital versions of the books in the university libraries’ collections.
(Kerscher Decl. ¶ 50.)
Respectfully submitted,
/s/
Daniel F. Goldstein (admitted pro hac vice)
Laura Ginsberg Abelson (admitted pro hac vice)
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore Street
Suite 1700
Baltimore, Maryland 21202
Telephone: 410-962-1030
Facsimile: 410-385-0869
dfg@browngold.com
labelson@browngold.com
Robert J. Bernstein (RB 4230)
THE LAW OFFICE OF ROBERT J. BERNSTEIN
380 Lexington Avenue, 17th Floor
New York, NY 10168
Telephone: 212-551-1068
Facsimile: 212-551-1001
rjb@robert-bernsteinlaw.com
Peter Jaszi (admitted pro hac vice)
5402 Surrey Street
Chevy Chase, Maryland 20815
Telephone: 301-656-1753
Facsimile: 301-656-7483
pjaszi@wcl.american.edu
Counsel for Defendant Intervenors
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