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

Filing 116

RULE 56.1 STATEMENT. 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., Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward)

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]
jgoldman~flcks.com
Attorneysfor Plaint~ffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
x
THE AUTHORS GUILD, INC., et al,
Index No. 11 Civ. 6351 (HB)
Plaintiffs,
-

against

-

HATHITRUST, et al.
Defendants.
x
PLAINTIFFS’ STATEMENT OF UNDISPUTED MATERIAL FACTS
Pursuant to Rule 56.1 of the Local Rules of the United States District Court for the
Southern District of New York, Plaintiffs The Authors Guild, ffic. (“Authors Guild”), The
Authors League Fund, Inc. (“ALF”), The Australian Society of Authors Limited (“ASA”), Union
Des Ecrivaines et des Ecrivains Québécois (“UNEQ”), Authors’ Licensing and Collecting
Society (“ALCS”), Sveriges Forfattarforbund, Norsk Faglitter~r Forfatter- Og
Oversetterforening (“SFF”), The Writers’ Union of Canada (“TWTJC”), Trond Andreassen
(“Andreassen”), Pat Cummings (“Cummings”), Erik Grundstrom (“Grundstrom”), Angelo
Loukakis (“Loukakis”), Roxana Robinson (“Robinson”), Helge Rønning (“Rønning”), André
Roy (“Roy”), Jack R. Salamanca (“Salamanca”), James Shapiro (“Shapiro”), Daniêle Simpson
(“Simpson”), T.J. Stiles (“Stiles”) and Fay Weldon (“Weldon”) (collectively, “Plaintiffs”), by

and through their attorneys, Frankfurt Kurnit Klein & Selz, P.C., hereby submit this statement of
material facts as to which Plaintiffs contend there is no genuine issue to be tried, as well as
citations to the admissible evidence in support of each fact. Except where specifically defined in
the chart below, capitalized terms shall have the meanings ascribed to them in the “Definitions”
set forth in Appendix A to this Statement.
No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPORTING EvIDENCE

GOOGLE LIBRARY PROJECT ORIGINS
Marybeth Peters, formerly the Register of Copyrights
of the United States, submitted a statement to the
Committee on the Judiciary of the United States House
of Representatives at 111th Congress, 1st Session on
September 10, 2009 which included the following:

Statement of Marybeth Peters,
The Register of Copyrights,
before the Committee on the
Judiciary, United States House
of Representatives, 111th
Congress 1st Session,
September 10, 2009,
Competition and Commerce in
Digital Books: The Proposed
Google Book Settlement,
http://www.copyright.gov/docs/
regstatO9loo9.html.

“The Copyright Office has been following the Google
Library Project since 2003 with great interest. We first
learned about it when Google approached the Library
of Congress, seeking to scan all of the Library’s books.
At that time, we advised the Library on the copyright
issues relevant to mass scanning, and the Library
offered Google the more limited ability to scan books
that are in the public domain. An agreement did not
come to fruition because Google could not accept the
terms.”
2.

WilkinTr.35:20-36:3,43:1825.

3.

Wilkin Tr. 54:8-21; see also
Courant Tr. 38:14-39:5.

4.

—

2

WilkinTr. 137:12-138:18.

No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPORTING EVIDENCE

5.

Wilkin “heard that Harvard publicly asserted that they
didn’t allow Google to digitize in-copyright works.”

Wilkin Tr. 119:12-14.

6.

On December 14, 2004, Google issued a press release
announcing “that it was working with the libraries of
Harvard, Stanford, the University of Michigan and the
University of Oxford as well as The New York Public
Library to digitally scan from their collections so that
users worldwide can search them in Google.”

Wilkin Tr. 33:24-34:16, JW2.

7.

James Hilton, who at one time held the position of
UM’s Associate Provost for Academic Information and
Instructional Technology Affairs, told Wilkin that he
had been warned by Dale Flecker, who at one time held
the position of Associate Director for Planning and
Systems at the Harvard University Library, that UM
had not “done much deep thinking on copyright issues”
in connection with UM’s decision to allow Google to
digitize in-copyright works.

Wilkin Tr. 122:7-124:15.

8.

Microsoft funded a mass digitization project at several
university libraries that intended to scan only public
domainbooks.

Christenson Tr. 24:9-17; Hirtle
Tr. 50:24-52:16; Farley Tr.
11:16-14:14.

GOOGLE BOOK SEARCH PROJECT
9.

ClancyTr. 17:5-11.

V

10.

ClancyTr.20:24-21:5.

11.

ClancyTr. 17:12-18:6.

3

No.
12.

j

PLAINTIFFS’ UNDIsPuTED FACT

~

SUPPORTING EVIDENCE

)JlancyTr. 17:12-18:6.

GOOGLE COOPERATIVE AGREEMENTS
~nswer ¶ 34; UM ROG No.
3(k); Rosenthal Dccl., Ex. 80
(UM-Google Cooperative
Agreement).

13.
~

14.

Answer ¶ 35; Christenson Tr.
39:19-40:4; Rosenthal Deci.,
Ex. 82 (UC-Google Cooperative
Agreement).

15.

Answer ¶ 36; Rosenthal Dccl.,
Ex. 85 (UW-Google
Cooperative Agreement).

16.

Answer ¶ 37; Rosenthal Dccl.,
Ex. 83 (CIC-Google
Cooperative Agreement).

17.

Answer ¶ 38; Rosenthal Dccl.,
Ex. 84 (Cornell-Google
Cooperative Agreement) at ¶ 3;
Hirtle Tr. 71:2-6.

4

No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPORTING EVIDENCE

SCOPE OF PROJECT
18.

In 2004, Google announced that it planned to create an
online database of all the world’s books, beginning
with agreements with major universities in the United
States.

Rosenthal Deci., Ex. 96 (Clancy
Exhibit No. 3).

19.

ClancyTr. 54:10-20.

20.

ClancyTr. 54:21-55:1.

21.

WilkinTr. 100:8-13.

22.

As of December 20,2011, UM had incorporated into
the HDL 4,490,155 digitized volumes.

UM RFA No. 32.

23.

With the exception of digitizing books to make them
available to people with print disabilities, the
University Librarian of UM was not aware of any
instance prior to entering into the UM-Google
Cooperative Agreement in which UM digitized works
that were still protected by copyright.

Courant Tr. 31 :12-25.

24.

As of December 9,2011, UC had provided Google
with 3,105,945 printed volumes that were digitized by
Google and are now in the HDL.

UC RFA No. 26; Farley Tr.
63:14-18.

25.

ChristensonTr. 103:10-11.

26.

UC was prepared to provide up to five million books
for digitization, including works protected by
copyright.

Farley Tr. 90:13-91:6.

27.

As of December 9, 2011, UW had provided Google
with 51 1,432 printed volumes that, upon information
and belief~ were digitized by Google and are now in the
HathiTrust Digital Library.

UW RFA No. 26.

28.

HirtleTr. 123:25-124:13;
178:20-179:10.

5

No.

PLAINTwFS’ UNDISPUTED FACT

SUPPORTING EVIDENCE

OPERATIONS
Selection/Collection
29.

Pursuant to the UM-Google Cooperative Agreement,
UC-Google Cooperative Agreement, UW-Google
Cooperative Agreement, CIC-Google Cooperative
Agreement and Comell-Google Cooperative
Agreement (collectively, the “Google Cooperative
Agreements”), each Defendant cooperates with Google
to identi~’ works from its individual collection to be
digitized.

Answer ¶ 50.

30.

The books selected for digitization pursuant to the
Google Cooperative Agreements are not limited to
works in the public domain, unpublished works or
deteriorating published works that cannot be replaced,
and include in-print books that are commercially
available and books that are protected by copyright.

Answer ¶ 50.

31.

It was UM’s and MLibrary’s intent to digitize
essentially all of the collections of the library except
for works that were fragile, not of the size that would
fit the digitization process or unable or difficult to be
copied for one reason or another.

Courant Tr. 64:15-25.

32.

Farley Tr. 41:2-19.

33.

Wilkin Tr. 148:9-149:7;
Christenson Tr. 68:6-11; Hirtle
Tr. 153:12-18; Farley Tr. 44:2045:2, 49:5-18; 52:21-53:17.

34.

HirtleTr. 153:12-18.

35.

Clancy Tr. 47:16-49:8;
Christenson 68:18-70:15; Hirtle
Tr. 152:16-153:9.

6

No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPORTING EVIDENCE

36.

ClancyTr. 49:9-50:21.

37.

Christenson Tr. 76:3-77:12.

38.

HirtleTr. 135:2-16.

39.

Witnesses from UC and Cornell were not aware of any
person at any time analyzing any of the four fair use
factors set forth in 17 U.S.C. § 107 with respect to any
particular book that was digitized from their library
collections.

Christenson 145:20-149:14;
Hirtle Tr. 227:13-229: t4.

40.

UM/UC ROG No.2;
Christenson Tr. 65:8-65:24.

41.

ClancyTr.42:19—43:5;
Christenson Tr. 67:8-14.

42.

UM/UC/UW ROG No.2;
WilkinTr. 143:6-145:18; Farley
Tr. 45:10-47:17.

43.

Hirtle Tr. 128:12-129:3.

Shz)nnent/Delivery

7

No.

PLAINTIFFS’ UNDIsPuTED FACT

SUPPORTING EVIDENCE

44.

Library staff at each of the University prepared print
copies of works from the University’s library
collection, including the Infringed Books, for shipment
to one of Google’s scanning centers.

UMIUC/UW RFA No. 12.

45.

I

Christenson Tr. 77:19-78:25.

n

46..Google arranged for transportation of print copies of
works in the Universities’ collection, including the
Infringed Books, from, and back, to the library that
prepared the print copies for shipment.

UMJUC/UW RFA No. 12.

47.

Answer ¶ 50.

Pursuant to the Google Cooperative Agreements, the
works selected for digitization are delivered to a
facility that is located either on or off the Defendant’s
campus and that is occupied by Google personnel and
scanning equipment.
Scanning

48.

~Google prepared a digital copy of each Infringed Book
:based on a print copy of the work obtained from one of
the Universities (each such copy, a “Master Digital
copy”).

UM/UC/UW RFA Response
No. 13.

49.

Each Master Digital Copy created by Google includes
an image component representing photographic
tbproductions of the pages of the Work (“Image File”)
dhd a Unicode text component representing text in
machine-readable format (“Text File”).

UM RFA Response No. 14;
Answer ¶ 52; Clancy Tr. 64:1316; Christenson Tr. 91:12-23;
Hirtle Tr. 109:10-15.

8

No.

PLAINTifFS’ UNDISPUTED FACT

SUPPORTING EVIDENCE

50.

1

Courant Tr. 68:14-69:23.

51.

Clancy Tr. 64:17-65:9.

Digitization Costs
52.

Clancy Tr. 57:20-58:5.

53.

Some libraries have estimated th;ir costs of performing
the act of digitization at approximately $100 per
volume.

Answer ¶ 53.

54.

UM estimates it costs somewhere between $35 and
several hundred dollars per volume and that an estimate
of $60 per book sounds “a bit low.”

Wilkin Tr. 99:4-8; 102:11.

55.

WilkinTr. 156:3-10; Rosenthal
Decl., Ex. 92.

9

No.

PLAINTIFFs’ UNDISPUTED FACT

SUPPORTING EvWENCE

56.

WilkinTr. 156:16-157:3.

57.

Hirtle Tr. 146:7-136:22;
140:16-25.

58.

Farley Tr. 36:21-37:19, 64:3-18.

1
59.

HirtleTr. 149:21-151:9.

60.

Farley Tr. 63:19-64:1.

61.

For 2011 the general firnd budget for UM’s libraries
was between $50 and $55 million.

Courant Tr. 25:3-25.

University Copy
62.

Pursuant to the Google Cooperative Agreements, after
digitizing a book from the collection of a Defendant,
Google has provided digital copies of books from a
Defendant’s library collections either to that Defendant
or, at the Defendant’s request, to MLibrary.

Answer ¶31 2, 52.

63.

Google provided one or more digital copies of each of
the Infringed Books to UM.

UM RFA No. 19.

64.

UC/UW RFA No.
70:6-18.

20; Farley Tr.

GOOGLE COMMERCIAL PURPOSES
65.

66.

Courant Tr. 52:3-25.

j

WilkinTr. 131:2-8.

10

No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPORTING EVIDENCE

67.

I

68.

69.

Wilkin Tr. 13 1:24-132:22.

Christenson Tr. 98:3-99:12.

If a user conducts a search on the website
books.google.com for the phrase “secure cheap
advertising,” which appears in the text of page 287 in
the book Good Troupers All by Gladys Malvern, the
copyright in which is owned by Plaintiff ALF, the
search results page includes a link to the work (without
displaying the content), as well as various
advertisements from which Google will earn revenue if
the user clicks on one of the advertisements.

Clancy Tr. 87:17 89:23;
Rosenthal Deci. ¶ 88, Ex. 86
(6/4/12 Printout of Google
Books Search Results).
—

70.

ClancyTr. 108:11-22.

71.

Clancy Tr. 117:4-20.

72.

ClancyTr. 121:19-122:10.

HATHITRUST
73.

HathiTrust Overview

74.

On October 13, 2008, the thirteen universities
comprising the CIC, led by UM; UC’s libraries, led by
the CDL; and the University of Virginia announced the
launch of the FlathiTrust Service and the HathiTrust
Digital Library (“HDL”), the shared digital repository
of digital collections of institutions participating in the
HathiTrust Service.

11

Answer ¶ 62.

No.

PLAINTInS’ UNDISPUTED FACT

SUPPORTING EvifiENCE

75.

Defendants store digital copies of the books that were
provided to them by Google in the HDL.

Answer ¶ 2.

76.

As of October 5, 2011, the HDL contained 9,709,348
volumes, amounting to 435 terabytes of data.

Answer ¶ 39.

77.

As of June 25, 2012, the HDL included 10,405,889
total volumes, 5,519,596 book titles, 272,002 serial
titles, 3,642,061,150 pages, 466 terabytes of data, the
equivalent of 123 miles and 8,455 tons of printed
materials. Of the 10,405,889 volumes, 3,097,761
volumes (.-~ 30%) are considered as being in the public
domain, meaning that 7,308,128 (— 70%) of the total)
are protected by copyright.

Rosenthal Decl., Ex. 105.

78.

HathiTrust receives the “overwhelming” majority of its
revenues from participating academic libraries that
“contribute” to HathiTrust.

Courant Tr. 119:5-20.

HathiTrust Revenues
~ Wilkin Tr. 204:10-19;
Rosenthal Decl., Ex. 93.

79.

80.

“[T]here are years in which HathiTrust has brought in
more than it spent” to cover “the expectation of future
equipment upgrades” and “to be able to develop new
projects and such.”

81.

Courant Tr. 127:20-129:4.

—

I

WilkinTr. 205:8-206:21;
Rosenthal Deel., Ex. 93.

HathiTrust Architecture
82.

The architecture for storing the HDL and operating the
HathiTrust Service employs two synchronized
instances of server farms (each including at least two
web servers, a database server and a storage cluster),
with the primary site located at UM’s Ann Arbor,
Michigan campus where incorporation into the HDL
occurs, and a minor site located at lU’s Indianapolis
campus.

12

Answer ¶ 66.

No.

PLAINTIFFS’ UNDISPUTED FACT

SuPPoRTING EVIDENCE

83.

The incorporation of digital works and their associated
metadata into the HDL is performed at MLibrary.

Answer ¶ 64.

84.

The digital works and associated metadata incorporated
into the HDL are replicated to an active mirror site
located on lU’s Indianapolis campus.

Answer ¶ 64.

85.

The HatbiTrust Service includes routine tape backups
of’ all data in the HDL, which are stored at a facility on
UM’s campus and are replicated to create a second
backup stored at a separate location on UM’s campus.

Answer ¶~f 64, 66.

86.

Four “HathiTrust Digital Copies” of each of the
Infringed Books are maintained in the HDL: (1) the
“Initial HathiTrust Digital Copy” received from
Google, (2) the “Minor Site HathiTrust Digital Copy,”
(3) the “First Backup Tape Digital Copy,” and (4) the
“Second Backup Tape HathiTrust Digital Copy.”

UM/HathiTrust/UC/UW RUG
No. 3.

87.

Each Initial HathiTrust Digital Copy received from
Google includes an Image File and Text File.

UM RFA Response No. 14.

88.

The Initial HathiTrust Digital Copy is stored on a
server (a) connected to the HathiTrust private computer
network and the UM campus computer network and (b)
physically located at Michigan Academic Computing
Center, Room 100, 1000 Oakbrook Drive, Ann Arbor,
Michigan.
The Mirror Site HathiTrust Digital Copy is stored on a
server (a) connected to the HathiTrust private computer
network and the IU Purdue University Indianapolis
campus computer network and (b) physically located at
Informatics & Communications Technology Complex,
Room IT 024, 535 West Michigan Street, Indianapolis,
Indiana.
The Initial HathiTrust Digital Copy and Mirror Site
HathiTrust Digital Copy are stored on media connected
to World Wide Web servers.
The First Backup HathiTrust Digital Copy is stored on
a server (a) connected to the UM campus computer
network and (b) physically located at Michigan
Academic Computing Center, Room 100, 1000
Uakbrook Drive, Ann Arbor, Michigan.

FIT/UM RUG Nos. 3(h) & (i).

89.

HTIUM RUG Nos. 3(h) & (i).

—

90.

91.

13

HT/UM ROG No. 3(g).

HT/UM RUG Nos. 3(h) & (i).

No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPORTING EVIDENCE

92.

The Second Backup HathiTrust Digital Copy is stored
on a server (a) connected to the UM campus computer
network and (b) physically located at Arbor Lakes Data
Facility, Room 9100, Arbor Lakes Building 1, 4251
Plymouth Rd., Ann Arbor, Michigan.
HathiTrust Uses

HT/UM ROG Nos. 3(h) & (1).

93.

The HathiTrust Service includes a search tool that
permits users to conduct frill-text searches of the works
in the HDL to determine the number of times a
searched term appears, and the page numbers on which
the searched term appears, in books in the HDL
(including public domain and in-copyright works).

Answer ¶ 68.

94.

It is theoretically possible to “reverse engineer” a
search index to display snippets, meaning to display the
words in a book that precede and follow the queried
text.

Wilkin Tr. 234:3-236:13.

95.

The HathiTrust Service permits certain users to view,
search, print, and download fi~ll copies of certain
volumes in the HDL, with the level of access
determined in part by the identity of the user and the
copyright status of the work.

Answer ¶ 69.

96.

The “HathiTrust Rights Database” includes
categorizations of copyright status for each work in the
HDL, as determined through processes conducted as
part of the 1-lathiTrust Service or through other
resources.

Answer ¶ 70.

97.

A work stored in the HDL may be assigned the
attribute “OPB” (an acronym standing for Out of Print
and Brittle) in the FlathiTrust Rights Database, which
indicates that the work has been determined to be out
of print and unusable or no longer in the library’s
collection because it is missing.

Wilkin Tr. 85 :6-88:23.

98.

The “OPB” attribute is typically assigned after
digitization.

Wilkin Tr. 88:7-20.

99.

The “OPB” attribute are made available to UM
authenticated users and users of the UM library to
view, print and download.

Wilkin Tr. 222:2-227:17; JW7
at 7, No. 2.

—

14

No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPoRTING EvmENCE

HathiTrust User Access and Security
100.

Ninety-three (93) individuals located in Michigan, New HT ROG No. 3(1); Wilkin Tr.
York, Minnesota, Wisconsin and California have
190:21-23, 192:1 1-19.
“privileged access” to materials stored in the HDL.

101.

Authenticated users with “privileged access” to the
HDL can view and download any work that is stored in
the I-IDL one page at a time.

Wilkin Tr. 192:21-194:9.

102.

Approximately five (5) users and thirty-two students
(32) or faculty with print disabilities may obtain
“privileged access” to the HDL without authenticating
onto the system from a particular workstation.

HT ROG No. 3W; Wilkin Tr.
193:20-194:6.

103.

Fourteen (14) different individuals located in Michigan
and Indiana have physical access to one or more of the
sewers or backup tapes comprising storing the digital
content in the HDL.

HT ROG No. 3(1).

104.

I

Clancy Tr. 94:1-99:20, 104:218.

105.

ChristensonTr. 120:14-24.

106.

WilkinTr. 198:13-200:19;
Rosenthal Decl., Exs. 87

J_~
t

15

.88

No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPORTING EVIDENCE

107.

Rosenthal Deci., Ex. 88
1~

“~

108.

WilkinTr. 174:23-178:17.

109.

Wilkin Tr. 174:23-178:17.

BOOK EXAMINATION

110. UM evaluated the physical condition of the Infringed
:Books that came from MLibrary and conducted
searches of the databases it uses to identify the
availability and price of a new bookin response to
Plaintiffs’ discovery requests.

Wilkin Tr. 74:16-75:5; 78:2479:5.

111.

When, in response to Plaintiffs’ discovery requests,
UM and UC performed a search to determine whether
unused replacement copies of the Infringed Books from
their libraries could be obtained at a “fair price,” they
reported that new copies of identical versions of many
Infringed Books were advertised for sale for under $20
a copy.

UM/UC RFA No. 5 (admitting
that new copies of identical
versions of many Infringed
Looks could be purchased for
under $20).

1 12.

When, in response to Plaintiffs’ discovery requests,
UM, UC and 11W evaluated the physical condition of
the Infringed Books, only six were identified as
“damaged” and only twenty-six were identified as
“deteriorating or at substantial risk of deteriorating in
the near future.”

UM/UC/UW RFA No. 8.

16

No.

PLAINTifFs’ UNDISPUTED FACT

SUPPORTING EVIDENCE

113.

Works published between 1850 and 1990 were
typically printed with acid content in the paper and that
he considers any such works to be “deteriorating with
the natural process of decay.”

Wilkin Tr. 66:8-67:25; see also
Courant Tr. 43:1 1-44:10.

ORPHAN WORKS PROJECT
114.

The Orphan Works Project (“OWP”) is an initiative to, Answer ¶~J 3, 73, 74.
inter alia, identil5’ amongst the in-copyright works in
the HDL so-called “orphan works” in-copyright
works for which the copyright holder cannot be found.
“[U]nder the OWP pilot process, OWP staff undertook
a multistep due diligence process to check whether a
work is commercially available for sale and, if it is not,
to attempt to locate and contact the copyright holder. If
the OWP staff were unsuccessful in identif~’ing the
copyright holder, the bibliographic information for the
work would have been listed on the HathiTrust Service
for ninety days.” Furthermore, “under the pilot
process, if no copyright holder emerged during the
ninety days, and if UM owned a physical copy of the
work in its collection, UM, through the HathiTrust
Service, planned to make the work available on a
limited basis to UM students, professors, and other
authenticated users and visitors to the libraries at UM’s
campuses, to view the work in full, print the work one
page at a time, and download the work one page at a
time in single-page PDF files.”
—

115.

UM decided to engage in the OWP in the months
following, and in light of; Judge Chin’s rejection of the
Amended Settlement Agreement (“ASA”) in the
Google Books case because the ASA had provided “a
mechanism whereby orphan works could be used
without negative consequences... [a]nd when the
settlement didn’t go through, that avenue for making
these works useable was blocked off and we asked
ourselves the question, is there some way we can get
some benefit our of these works for digital uses.”

Courant Tr. 141:22-144:20.

116.

Books determined to be orphan works under the OWP
will be made available to “tens of thousands” of
people, including currently registered UM students,
faculty, staff and people who walk into the MLibrary
facilities.

Courant Tr. 146:7-20.

17

No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPORTING EVIDENCE

117.

On May 16,2011, MLibrary announced the launch of
the OWP.

FAC

118.

On June 23,2011, UW’s intention to participate in the
OWP became public.

Answer ¶ 36.

119.

On August 24,2011, UC announced its intention to
join the OWP.

Answer ¶ 35.

120.

On August 24,2011, Cornell announced its intention to
jointheOwP.

Answer ¶ 38.

121.

A book entitled Good Troupers All: The Story of
Joseph Jefferson by Gladys Malvern was digitized and
included in the HDL and was preliminarily identified
as a book that UM planned to make available on a
limited basis contemplated as part of the OWP if the
copyright holder were not identified.

Answer ¶ 13.

122.

A book entitled Lost Country by Jack Salamanca was
digitized and included in the HDL and was
preliminarily identified as a book that UM planned to
make available on a limited basis contemplated as part
of the OWP if the copyright holder were not identified.

Answer ¶ 29.

123.

On September 16, 2011, UM announced that there
were “number of errors, some of them serious,” in the
process that had been used to identify orphan
candidates as part of the Orphan Works Project.

Rosenthal Decl., Ex. 94
(9/16/11 UM Library
Announcement); Answer ¶ 78;
Wilkin Tr. 241:24-242:14.

124.

UM suspended work in the OWP.

Courant Tr. 159:8-11.

125.

Under the OWP, several books whose authors should
have been easily locatable but were not located were
wrongly identified as orphan candidates.

Wilkin Tr. 241:24-242:14;
Courant Tr. 159:12-19, 173:823.

126.

Wilkin characterized the “errors” in the OWP process
as “errors of execution of management” meaning that
steps that had been designed were not followed, so
“closer management” is required.

Wilkin Tr. 241:24-242:14.

UM intends to proceed with identifying prospective
orphan works and expects to list candidate orphan
works on a website and plausibly other locations.

Courant Tr. 158:20-25, 161:610. Answer ¶ 78.

¶ 73; Answer ¶ 73.

—

127.

18

No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPORTING EVIDENCE

MARKET HARM
128.

Defendants’ unlicensed digitization and use of the
Infringed Books has harmed or threatens to harm
Plaintiffs’ interests in the Infringed Books in several
ways, including those described below.

In addition to the evidence cited
below, descriptions of the
various harms to the Individual
Plaintiffs are set forth at:
Stiles Decl. ¶fflJ 10-19;
Andreassen Decl. ¶~J 6-10;
Cummings Decl. ¶~ 6-13;
Grundstrom Deci. ¶IJ 6-12;
Robinson Decl. fl 6-10;
Ronning Decl. ¶~J 6-11; Shapiro
Decl. ¶1J 6-10; Simpson Decl. ¶~
6-10; Weldon Decl. ¶~J 6-10;
and White Deci. ¶fflJ 7-10, 12-17.
Descriptions of the various
harms to the Associational
Plaintiffs are set forth at:
AG Decl. fl 27-34; ALF Decl.
¶jJ 5-18; NFF Deel. ¶~J 5-12;
SFF ¶~J 5-12; TWUC Dccl. fi 715; and UNEQ Deel. ¶IJ 5-12.

129.

(a)

Loss or potential loss of revenue from sale or
licensing of digital copies of Plaintiffs’
copyrighted works to Defendants for inclusion
in a digital archive for preservation or other
purposes;

AndreassenlCummings/Grundst
romfLoukakislRobinson/Ronnin
g/Roy/SalamancalShapiro/Simp
son!Stiles/WeldonlAG/ALCS/A
LF/ASAITWUC ROG II No. 5;
Stiles Decl.

¶fflJ 11-12, Exs. B-D;

StilesTr. 22:25-23:3; 104:1422, 105:4-9; 163:6-9, 166:4-23;
Cummings Tr. 63 :25-64:19.
130.

(b)

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

AndreassenlCummings/Grundst
romlLoukakis/RobinsonlRonnin
g/Roy/SalamancaJShapiro/Simp
sonlStiles/WeldonIAG/ALCS/A
LF/ASA/TWUC ROG II No.5;
Stiles Tr.

¶ 13;

Stiles Tr. 35:15-20; 168:6-19.

19

No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPORTING EVIDENCE

131.

(c)

AndreassenlCummings/Grundst
romlLoukakis/RobinsonlRonnin
g/Roy/SalamancalShapiro/Simp
sonlStilesfWeldon/AG/ALCS/A
LF/ASAITWUC ROG II No. 5;

Loss or potential loss of revenue from sale or
licensing of digital copies of Plaintiffs’
copyrighted works for use purely in connection
with full-text searching, including disruption of
commercial licenses granted to online
booksellers such as Amazon, whereby authors
(or their publishers) authorize their books to be
indexed and made fully searchable in order to
promote sales.
.

.

.

.

Stiles Decl.

¶ 14;

Rosenthal Decl., Ex. 104
(Amazon Search Inside
License);
StilesTr. 180:10-182:11,
184:18-23, 189:14-191:17.

132.

(d)

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;

AndreassenlCummings/Grundst
romfLoukakis/RobinsonlRonnin
g/Roy/SalamancalShapiro/Simp
sonlStiles/WeldonlAG/ALCS/A
LF/ASAITWUC ROG II No. 5.

133.

(e)

Loss or potential loss of revenue from sale or
licensing of digital copies of Plaintiffs’
copyrighted works due to the availability of
such works for tens of thousands of people to
view, print and download as a result of the
accidental or mistaken identification of such
,,
works as public domain or orphan works

AndreassenlCummings/Grundst
romfLoukakis/RobinsonlRonnin
g/Roy/SalamancalShapiro/Simp
son/Stiles/WeldonlAG/ALCS/A
LF/ASAJTWUC ROG II No. 5;

.

.

White Deel. ¶1J 7-10, Exs. C &
D; ALF Decl. ¶1J 12-18, Exs. D
& E; UNEQ Dccl.

¶ 10, Ex. A;

White Tr. 98:2-18;
StilesTr. 188:1-189:13.

20

No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPoRTING EVIDENCE

134.

(1)

Edelman DecI.,passim;

Exposure of Plaintiffs’ copyrighted works to
virtually unlimited piracy due to breaches in
security without providing Plaintiffs any
contractual protections or financial
remuneration in exchange for that risk;

Stiles Decl.

¶ 16;

Stiles Tr. 130:4-14, 167:1-4;
Cummings Tr. 63:25-64:19;
Cummings Tr. 108:13-20;
110:19-11:2; Rønning Tr.
102:11-18;
AndreassenlCum.mings!Grundst
rom/Loukakis/Robinson/Ronnin
g/Roy/SalamancalShapiro!Simp
son/Stiles/Weldon ROG Nos. 67; AG!ALCS!ALF/ASA/TWUC
RUG Nos. 8-9;
Andreassen/Cummings/Grundst
rom/Loukalcis/Robinson/Ronnin
g/Roy/SalamancalShapiro!Simp
son/Stiles!Weldon/AG/ALCS!A
LF/ASA/TWUC RFA Nos. 911;
AndreassenlCummings/Grundst
romfLoukakis/RobinsonlRonnin
g/Roy/Salamanca/Shapiro/Simp
sonlStiles/Weldon/AG/ALCS/A
LF/ASA/TWUC RUG II No. 5.

135.

(g)

Loss or potential loss of control over the
reproduction and distribution of plaintiffs’
copyrighted works.

Andreassen!Cummings!Grundst
romlLoukakis!RobinsonfRonnin
g/Roy!Salamanca/Shapiro/Simp
sonlStiles!Weldon ROG Nos. 67; AG/ALCS!ALF/ASAJTWUC
RUG Nos. 8-9;
AndreassenlCummings!Grundst
ronilLoukalcis!RobinsonfRonnin
gfRoy!SalamancalShapiro/Simp
sonlStiles/Weldon/AG!ALCS!A
LF/ASAITWUC RFA Nos. 911;
Andreassen!Cummings/Grundst
romlLoukakislRobinson/Ronnin
g/Roy/SalamancalShapiro!Simp
sonlStiles/WeldonIAG!ALCS!A
LF/ASA/TWUC RUG II No.5.

21

No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPORTING EVIDENCE

136.

(h)

AndreassenlCumniings/Grundst
romlLoukakis/RobinsonlRonnin
gfRoy/SalamancalShapiro/Simp
son/Stiles/Weldon ROG Nos. 67; AG/ALCS/ALF/ASAJTWUC
ROGNos. 8-9;

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

Andreassen/Cummings/Grundst
rom/LoukakisfRobinsonlRonnin
g/Roy/SalamancalShapiro/Simp
son!Stiles/Weldon/AG/ALC S/A
LF/ASA/TWUC RFA Nos. 911;
Andreassen/Cummings/Grundst
romlLoukakislRobinson/Ronnin
g/Roy/Salamanca/Shapiro/Simp
son/Stiles!Weldon/AG/ALCS/A
LF/ASA/TWUC ROG II No. 5;
Christenson Tr. 136:25-139:4
(existence of digital copy in
HDL may impact library’s
decision whether to acquire
print copy of book), Rosenthal
Deci., Ex. 103 (Christenson
article discussing cost-savings
by libraries resulting from
HathiTrust);
Cummings Tr. 64:10-19 (lost
library book sales); Rønning Tr.
106:4-10.
137.

(i)

Loss or potential loss of revenue from entering
into collective licensing agreements for mass
digitization of works, including disruption of
existing programs to digitize library collections

Gervais Decl.,passim;

SFF Deel.

¶1J 7,

10, Ex. A~.

COPYRIGHT OWNERSifiP
138.

Andreassen owns the copyright in and to the
Andreassen Works.

Andreassen Decl.

¶ 3.

139.

Cummings owns the copyright in and to the Cummings
Works.

Cummings Deci.
B.

¶ 3, Exs. A &

140.

Grundstrom owns the copyright in and to the
GrundstrOm Works.

Grundstrom Deel.

22

¶ 3.

No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPORTING EVIDENCE

141.

Loukakis owns the copyright in and to the Loukakis
Works.

Loukakis ROG No. 1, Schedule
A.

142.

Robinson owns the copyright in and to the Robinson
Works.

Robinson Deci.
B.

143.

Rønning owns the copyright in and to the Rønning
Works.

Rønning Decl.

144.

Roy owns the copyright in and to the Roy Works.

Roy Deci.

145.

Salamanca owns the copyright in and to the Salamanca
Works.

146.

Shapiro owns the copyright in and to the Shapiro
Works.

Shapiro Deci.

147.

Simpson owns the copyright in and to the Simpson
Works.

Simpson Decl.

148.

Stiles owns the copyright in and to the Stiles Works.

149.

Weldon owns the copyright in and to the Weldon
Works.

¶ 6, Ex. A.
Weldon Decl. ¶ 3, Exs. A & B.

150.

AG owns the copyrights in and to the AG Works.

AG Decl.

151.

ALF owns the copyright in and to the ALF Works.

ALF Decl. ¶4, Exs. A-C.

152.

ASA owns the copyright in and to the ASA Works.

ASA ROG No. 1, Schedule A.

153.

TWUC owns the copyright in and to the TWUC
Works.

TWUC Decl.

¶ 3, Exs. A &

¶ 3.

¶ 3.
White Deci. ¶ 5, Exs. A & B.
¶ 3, Ex. A.
¶ 3.

Stiles Decl.

¶ 26, Ex. A.

¶ 6, Exs. A & B.

PUBLICATION
154.

Each of the Infringed Books is published.

AndreassenlCummings/Grundst
romlLoukakis/RobinsonlRonnin
glRoy/SalamancalShapiro/Simp
sonlStiles/WeldonIAG/ALF/AS
A/TWUC ROG No. 1, Ex. A.

155.

Only published works were digitized in the Google
Library Project.

UM/UC/UW RFA No. 4;

.

Clancy Tr. 45:3
Tr. 191:7-20.

—

46:8; Hirtle

COPYING OF INFRINGED BOOKS
156.

Pursuant to one or more of the Google Cooperative
Agreements, the Andreassen Works were digitized and
included in the HDL.

23

Answer ¶ 22;
http://www.hathitrust.org/hathif
iles; UM RFA No. 35.

No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPORTING EvmENCE

157.

Pursuant to one or more of the Google Cooperative
Agreements, the Cummings Works were digitized and
included in the HDL.

Answer ¶ 23;
http://www.hathitrust.org/hathif
iles; UM RFA No. 35.

158.

Pursuant to one or more of the Google Cooperative
Agreements, the Grundstrom Works were digitized and
included in the HDL.

Answer ¶ 24;
http://www.hathitrust.org/hathif
iles; UM RFA No. 35.

159.

Pursuant to one or more of the Google Cooperative
Agreements, the Loukakis Works were digitized and
included in the HDL.

Answer ¶ 25;
http://www.hatbitrust.org/hathif
iles; UM RFA No. 35.

160.

Pursuant to one or more of the Google Cooperative
Agreements, the Rorming Works were digitized and
included in the HDL.

Answer ¶ 26;
http://www.hathitrust.org/hathif
iles; UM RFA No. 35.

161.

Pursuant to one or more of the Google Cooperative
Agreements, the Robinson Works were digitized and
included in the HDL.

Answer ¶ 27;
http://www.hathitrust.org/hathif
iles; UM RFA No. 35.

162.

Pursuant to one or more of the Google Cooperative
Agreements, the Roy Works were digitized and
included in the HDL.

Answer ¶ 28;
http://www.hathitrust.org/hathif
iles; UM RFA No. 35.

163.

Pursuant to one or more of the Google Cooperative
Agreements, the Salamanca Works were digitized and
included in the HDL.

Answer ¶ 29;
hun ://www.hathitrust.org/hathif
iles; UM RFA No. 35.

164.

Pursuant to one or more of the Google Cooperative
Agreements, the Shapiro Works were digitized and
included in the HDL.

Answer ¶ 30;
http://www.hathitrust.org/hathif
iles; UM RFA No. 35.

165.

Pursuant to one or more of the Google Cooperative
Agreements, the Simpson Works were digitized and
included in the HDL.

Answer ¶ 31;
http://www.hathitrust.orR/hathif
iles; UM RFA No. 35.

166.

Pursuant to one or more of the Google Cooperative
Agreements, the Stiles Works were digitized and
included in the HDL.

Answer ¶ 32;
http://www.hathitrust.org/hathif
iles; UM RFA No. 35.

167.

Pursuant to one or more of the Google Cooperative
Agreements, the Weldon Works were digitized and
included in the HDL.

Answer ¶ 33;
http://www.hathitrust.org/hathif
iles; UM RFA No. 35.

168.

Pursuant to one or more of the Google Cooperative
Agreements, the AG Works were digitized and
included in the HDL.

http://www.hathitrust.org/hathif
iles; UM RFA No. 35.

24

No.

PLAINTIFFS’ UNDISPUTED FACT

SUPPORTING EvifiENcE

169.

Pursuant to one or more of the Google Cooperative
Agreements, the ALF Works were digitized and
included in the FIDL.

Answer ¶ 13;
http://www.hathitrust.org/hathif
iles; UM RFA No. 35.

170.

Pursuant to one or more of the Google Cooperative
Agreements, the TWUC Works were digitized and
included in the HDL.

http://www.hathitrust.org/hathif
iles; UM RFA No. 35.

171.

Pursuant to one or more of the Google Cooperative
Agreements, the ASA Works were digitized and
included in the HDL.

http://www.hathitrust.org/hathif
iles; UM RFA No. 35.

172.

Defendants admit that the Image File and Text File,
which were generated through the digitization process
for each Infringed Book and incorporated into the
FIDL, each “implicates the right of reproduction
referenced in 17 U.S.C. § 1060).”

UM RFA No. 15.

173.

Plaintiffs never authorized any of the Defendants to
digitize, copy or make any other uses of any of the
Infringed Books.

Stiles Decl. ¶J 9; White Decl. ¶
1 1;
AndreassenlCummings/Grundst
romlLoukakis/RobinsonlRonnin
glRoy/Shapiro/Simpsonl
Weldon Decl. ¶ 5;
AG DecI. ¶ 26; ALF ¶ 4;
TWUC~f 6;
UM/UC! UW RFA No.7.

174.

Of the 116 Infringed Books, 77 are in print and 30 are
available for purchase in digital format.

AndreassenlCummings/Grundst
romlLoulcakis/RobinsonfRomiin
g/Roy/Salamanca/Shapiro/Simp
son/Stiles/WeldonlAG/ALCS/A
LF/ASA/TWUC ROG II No. 1;
AndreassenlCummings/Grundst
romlLoukakis/RobinsonlRonnin
g/Roy/SalamancalShapiro/Simp
sonlStiles/WeldonIAG/ALCS/A
LF/ASA/TWUC ROG II No.4.

25

Dated: New York, New York
June 29, 2012
FRANKFURT KURNIT KLEIN & SELZ,

By: Is! Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel. [phone]
Fax: [phone]
erosenthal(~2fldcs. com
j go1dman(~&ks.com
Attorneys for PlaintjfJ’s

26

P.C.

APPENDIX A
DEFINITIONS
Parties
Associational Plaintiffs
1.

“AG” means Plaintiff The Authors Guild, Inc.

2.

“ALF” means Plaintiff The Authors League Fund, Inc.

3.

“ASA” means Plaintiff The Australian Society of Authors Limited.

4.

“UNEQ” means Plaintiff Union Des Écrivaines et des Écrivains Québécois.

5.

“ALCS” means Plaintiff Authors’ Licensing and Collecting Society.

6.

“SFF” means Plaintiff Sveriges Författarförbund.

7.

“NFF” means Plaintiff Norsk Faglitterær Forfatter- Og Oversetterforening.

8.

“TWUC” means Plaintiff The Writers’ Union of Canada.

9.
“Associational Plaintiffs” means AG, ALF, ASA, UNEQ, ALCS, SFF, NFF and
TWUC, collectively.
Individual Plaintiffs
10.

“Andreassen” means Plaintiff Trond Andreassen.

11.

“Cummings” means Plaintiff Pat Cummings.

12.

“Grundström” means Plaintiff Erik Grundström.

13.

“Loukakis” means Plaintiff Angelo Loukakis.

14.

“Robinson” means Plaintiff Roxana Robinson.

15.

“Rønning” means Plaintiff Helge Rønning.

16.

“Roy” means Plaintiff André Roy.

17.

“Salamanca” means Plaintiff Jack R. Salamanca.

18.

“Shapiro” means Plaintiff James Shapiro.

19.

“Simpson” means Plaintiff Danièle Simpson.

FKKS: 461427.v2 

19894.300 

20.

“Stiles” means Plaintiff T.J. Stiles.

21.

“Weldon” means Plaintiff Fay Weldon.

22.
“Individual Plaintiffs” means Andreassen, Cummings, Grundstrom, Loukakis,
Robinson, Ronning, Roy, Salamanca, Shapiro, Simpson, Stiles and Weldon, collectively.
Defendants
23.
“UM” means The Regents of The University of Michigan which, pursuant to a
stipulation between the parties, Plaintiffs have sued herein by naming as a defendant Mary Sue
Coleman in her official capacity as President of UM.
24.
“UC” means the Board of Regents of the University of California which, pursuant
to a stipulation between the parties, Plaintiffs have sued herein by naming as a defendant Mark
G. Rudof in his official capacity as President of UC.
25.
“UW” means The Board of Regents of The University of Wisconsin which,
pursuant to a stipulation between the parties, Plaintiffs have sued herein by naming as a
defendant Kevin Reilly in his official capacity as President of UW.
26.
“IU” means The Trustees of Indiana University which, pursuant to a stipulation
between the parties, Plaintiffs have sued herein by naming as a defendant Michael McRobbie in
his official capacity as President of IU.
27.

“Cornell” means defendant Cornell University.

28.
“HathiTrust” means defendant HathiTrust which, according to Defendants’
Answer (defined below), “is the name of a service provided by UM under agreements with
member institutions including [UM, UC, UW, IU and Cornell] (but only to the extent that
HathiTrust constitutes an entity capable of being sued, which Defendants contend it does not)
(‘HathiTrust Service’).”
29.

“Defendants” means HathiTrust, UM, UC, UW, IU and Cornell, collectively.

30.
“University” or “Universities” means UM, UC and UW, collectively or
individually, as the case may be.
Non-Parties
31.

“Google” means Google Inc.

Pleadings
32.

“FAC” means Plaintiffs’ First Amended Complaint dated October 5, 2011.

33.

“Answer” means Defendants’ Joint Answer and Defenses dated December 2,

2011.

2

Declarations
Attorneys
34.
“Rosenthal Declaration” means the Declaration of Edward H. Rosenthal dated
June 29, 2012.
Individual Plaintiffs
35.
“Andreassen Declaration” means the Declaration of Plaintiff Trond Andreassen
dated June 22, 2012.
36.
“Cummings Declaration” means the Declaration of Plaintiff Pat Cummings dated
June 28, 2012.
37.
“Grundström Declaration” means the Declaration of Plaintiff Erik Grundström
dated June 26, 2012.
38.
“Robinson Declaration” means the Declaration of Plaintiff Roxana Robinson
dated June 26, 2012.
39.
“Rønning Declaration” means the Declaration of Plaintiff Helge Rønning dated
June 27, 2012.
40.

“Roy Declaration” means the Declaration of Plaintiff André Roy dated June 27,

41.

“Shapiro Declaration” means the Declaration of James Shapiro dated June 25,

42.

“Simpson Declaration” means the Declaration of Danièle Simpson dated June 25,

43.

“Stiles Declaration” means the Declaration of Plaintiff T.J. Stiles dated June 26,

2012.
2012.
2012.
2012.
44.
25, 2012.

“Weldon Declaration” means the Declaration of Plaintiff Fay Weldon dated June

45.
“White Declaration” means the Declaration of John White, literary agent for
Plaintiff Jack R. Salamanca, dated June 21, 2012.
Associational Plaintiffs
46.

“AG Declaration” means the Declaration of Paul Aiken dated June 29, 2012.

47.

“ALCS Declaration” means the Declaration of Owen Atkinson dated June 27,

2012.

3

48.

“ALF Declaration” means the Declaration of Isabel Howe dated June 26, 2012.

49.
“UNEQ Declaration” means the Declaration of Francis Farley-Chevrier dated
June 26, 2012.
50.

“SFF Declaration” means the Declaration of Louise Hedberg dated June 26, 2012.

51.

“NFF Declaration” means the Declaration of Jan Terje Helmi dated June 27,

52.

“TWUC Declaration” means the Declaration of Kelly Duffin dated June 28, 2012.

2012.

Experts
53.
“Gervais Declaration.” means the Declaration of Professor Daniel Gervais dated
June 29, 2012.
54.
“Edelman Declaration” means the Declaration of Professor Benjamin Edelman
dated June 29, 2012.
Deposition Transcripts
Depositions of Plaintiffs
55.
“Cummings Tr.” means the transcript from the deposition of Pat Cummings dated
May 22, 2012, a copy of which is annexed as Exhibit 1 to the Rosenthal Declaration.
56.
“Rønning Tr.” means the transcript from the deposition of Helge Rønning dated
May 29, 2012, which is annexed as Exhibit 2 to the Rosenthal Declaration.
57.
“Stiles Tr.” means the transcript from the deposition of T.J. Stiles dated May 31,
2012, which is annexed as Exhibit 3 to the Rosenthal Declaration.
58.
“White Tr.” means the transcript from the deposition of John White, literary agent
for Plaintiff J.R. Salamanca, dated June 8, 2012, which is annexed as Exhibit 4 to the Rosenthal
Declaration.
Depositions of Defendants
59.
“Christenson Tr.” means the transcript from the deposition of Heather
Christenson (University of California) dated April 11, 2012, which is annexed as Exhibit 5 to the
Rosenthal Declaration.
60.
Courant Tr.” means the transcript from the deposition of Paul Courant
(HathiTrust/University of Michigan) dated April 24, 2012, which is annexed as Exhibit 6 to the
Rosenthal Declaration.
61.
“Farley Tr.” means the transcript from the deposition of Laine Farley (University
of California) dated April 12, 2012, which is annexed as Exhibit 7 to the Rosenthal Declaration.

4

62.
“Hirtle Tr.” means the transcript from the deposition of Peter Hirtle (Cornell
University) dated April 18, 2012, which is annexed as Exhibit 8 to the Rosenthal Declaration.
63.
“Wilkin Tr.” means the transcript from the deposition of John Wilkin
(HathiTrust/University of Michigan) dated April 25, 2012, which is annexed as Exhibit 9 to the
Rosenthal Declaration.
Depositions of Non-Parties
64.
“Clancy Tr.” means the transcript from the deposition of Dan Clancy (Google)
dated June 1, 2012, excerpts of which are annexed as Exhibit 10 to the Rosenthal Declaration.
Written Discovery Responses
Responses from Individual Plaintiffs
65.
“Andreassen ROG” means Objections and Responses of Plaintiff Trond
Andreassen to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents dated January 6, 2012, a copy of which is annexed as Exhibit 11 to the Rosenthal
Declaration.
66.
“Andreassen RFA” means Objections and Responses of Plaintiff Trond
Andreassen to Defendants’ First Set of Requests for Admission dated January 6, 2012, a copy of
which is annexed as Exhibit 12 to the Rosenthal Declaration.
67.
“Andreassen ROG II” means Objections and Responses of Plaintiff Trond
Andreassen to Defendants’ Second Set of Interrogatories and Requests for the Production of
Documents dated April 10, 2012, a copy of which is annexed as Exhibit 13 to the Rosenthal
Declaration.
68.
“Cummings ROG” means Objections and Responses of Plaintiff Pat Cummings to
Defendants’ First Set of Interrogatories and Requests for the Production of Documents dated
January 6, 2012, a copy of which is annexed as Exhibit 14 to the Rosenthal Declaration.
69.
“Cummings RFA” means Objections and Responses of Plaintiff Pat Cummings to
Defendants’ First Set of Requests for Admission dated January 6, 2012, a copy of which is
annexed as Exhibit 15 to the Rosenthal Declaration.
70.
“Cummings ROG II” means Objections and Responses of Plaintiff Pat Cummings
to Defendants’ Second Set of Interrogatories and Requests for the Production of Documents
dated April 10, 2012, a copy of which is annexed as Exhibit 16 to the Rosenthal Declaration.
71.
“Grundstrom ROG” means Objections and Responses of Plaintiff Erik
Grundstrom to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents dated January 13, 2012, a copy of which is annexed as Exhibit 17 to the Rosenthal
Declaration.

5

72.
“Grundstrom RFA” means Objections and Responses of Plaintiff Erik
Grundstrom to Defendants’ First Set of Requests for Admission dated January 13, 2012, a copy
of which is annexed as Exhibit 18 to the Rosenthal Declaration.
73.
“Grundstrom ROG II” means Objections and Responses of Plaintiff Erik
Grundstrom to Defendants’ Second Set of Interrogatories and Requests for the Production of
Documents dated April 10, 2012, a copy of which is annexed as Exhibit 19 to the Rosenthal
Declaration.
74.
“Loukakis ROG” means Objections and Responses of Plaintiff Angelo Loukakis
to Defendants’ First Set of Interrogatories and Requests for the Production of Documents dated
January 13, 2012, a copy of which is annexed as Exhibit 20 to the Rosenthal Declaration.
75.
“Loukakis RFA” means Objections and Responses of Plaintiff Angelo Loukakis
to Defendants’ First Set of Requests for Admission dated January 12, 2012, a copy of which is
annexed as Exhibit 21 to the Rosenthal Declaration.
76.
“Loukakis ROG II” means Objections and Responses of Plaintiff Angelo
Loukakis to Defendants’ Second Set of Interrogatories and Requests for the Production of
Documents dated April 10, 2012, a copy of which is annexed as Exhibit 22 to the Rosenthal
Declaration.
77.
“Robinson ROG” means Objections and Responses of Plaintiff Roxana Robinson
to Defendants’ First Set of Interrogatories and Requests for the Production of Documents with
Amended Schedule A dated January 9, 2012, a copy of which is annexed as Exhibit 23 to the
Rosenthal Declaration.
78.
“Robinson RFA” means Objections and Responses of Plaintiff Roxana Robinson
to Defendants’ First Set of Requests for Admission dated January 9, 2012, a copy of which is
annexed as Exhibit 24 to the Rosenthal Declaration.
79.
“Robinson ROG II” means Objections and Responses of Plaintiff Roxana
Robinson to Defendants’ Second Set of Interrogatories and Requests for the Production of
Documents dated March 28, 2012, a copy of which is annexed as Exhibit 25 to the Rosenthal
Declaration.
80.
“Ronning ROG” means Objections and Responses of Plaintiff Helge Ronning to
Defendants’ First Set of Interrogatories and Requests for the Production of Documents dated
January 12, 2012, a copy of which is annexed as Exhibit 26 to the Rosenthal Declaration.
81.
“Ronning RFA” means Objections and Responses of Plaintiff Helge Ronning to
Defendants’ First Set of Requests for Admission dated January 12, 2012, a copy of which is
annexed as Exhibit 27 to the Rosenthal Declaration.
82.
“Ronning ROG II” means Objections and Responses of Plaintiff Helge Ronning
to Defendants’ Second Set of Interrogatories and Requests for the Production of Documents
dated April 10, 2012, a copy of which is annexed as Exhibit 28 to the Rosenthal Declaration.

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83.
“Roy ROG” means Objections and Responses of Plaintiff Andre Roy to
Defendants’ First Set of Interrogatories and Requests for the Production of Documents dated
January 13, 2012, a copy of which is annexed as Exhibit 29 to the Rosenthal Declaration.
84.
“Roy RFA” means Objections and Responses of Plaintiff Andre Roy to
Defendants’ First Set of Requests for Admission dated January 13, 2012, a copy of which is
annexed as Exhibit 30 to the Rosenthal Declaration.
85.
“Roy ROG II” means Objections and Responses of Plaintiff Andre Roy to
Defendants’ Second Set of Interrogatories and Requests for the Production of Documents dated
April 10, 2012, a copy of which is annexed as Exhibit 31 to the Rosenthal Declaration.
86.
“Salamanca ROG” means Amended Objections and Responses of Plaintiff Jack
R. Salamanca to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents with Second Amended Schedule A dated April 10, 2012, a copy of which is annexed
as Exhibit 32 to the Rosenthal Declaration.
87.
“Salamanca RFA” means Objections and Responses of Plaintiff Jack R.
Salamanca to Defendants’ First Set of Requests for Admission dated January 12, 2012, a copy of
which is annexed as Exhibit 33 to the Rosenthal Declaration.
88.
“Salamanca ROG II” means Objections and Responses of Plaintiff Jack R.
Salamanca to Defendants’ Second Set of Interrogatories and Requests for the Production of
Documents dated April 10, 2012, a copy of which is annexed as Exhibit 34 to the Rosenthal
Declaration.
89.
“Shapiro ROG” means Amended Objections and Responses of Plaintiff James
Shapiro to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents dated March 26, 2012, a copy of which is annexed as Exhibit 35 to the Rosenthal
Declaration.
90.
“Shapiro RFA” means Amended Objections and Responses of Plaintiff James
Shapiro to Defendants’ First Set of Requests for Admission dated April 3, 2012, a copy of which
is annexed as Exhibit 36 to the Rosenthal Declaration.
91.
“Shapiro ROG II” means Objections and Responses of Plaintiff James Shapiro to
Defendants’ Second Set of Interrogatories and Requests for the Production of Documents dated
April 10, 2012, a copy of which is annexed as Exhibit 37 to the Rosenthal Declaration.
92.
“Simpson ROG” means Objections and Responses of Plaintiff Daniele Simpson
to Defendants’ First Set of Interrogatories and Requests for the Production of Documents dated
January 13, 2012, a copy of which is annexed as Exhibit 38 to the Rosenthal Declaration.
93.
“Simpson RFA” means Amended Objections and Responses of Plaintiff Daniele
Simpson to Defendants’ First Set of Requests for Admission dated April 3, 2012, a copy of
which is annexed as Exhibit 39 to the Rosenthal Declaration.

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94.
“Simpson ROG II” means Objections and Responses of Plaintiff James Shapiro to
Defendants’ Second Set of Interrogatories and Requests for the Production of Documents dated
April 10, 2012, a copy of which is annexed as Exhibit 40 to the Rosenthal Declaration.
95.
“Stiles ROG” means Objections and Responses of Plaintiff T.J. Stiles to
Defendants’ First Set of Interrogatories and Requests for the Production of Documents dated
January 6, 2012, a copy of which is annexed as Exhibit 41 to the Rosenthal Declaration.
96.
“Stiles RFA” means Objections and Responses of Plaintiff T.J. Stiles to
Defendants’ First Set of Requests for Admission dated January 6, 2012, a copy of which is
annexed as Exhibit 42 to the Rosenthal Declaration.
97.
“Stiles ROG II” means Objections and Responses of Plaintiff T.J. Stiles to
Defendants’ Second Set of Interrogatories and Requests for the Production of Documents dated
April 10, 2012, a copy of which is annexed as Exhibit 43 to the Rosenthal Declaration.
98.
“Weldon ROG” means Objections and Responses of Plaintiff Fay Weldon to
Defendants’ First Set of Interrogatories and Requests for the Production of Documents dated
January 12, 2012, a copy of which is annexed as Exhibit 44 to the Rosenthal Declaration.
99.
“Weldon RFA” means Objections and Responses of Plaintiff Fay Weldon to
Defendants’ First Set of Requests for Admission dated January 12, 2012, a copy of which is
annexed as Exhibit 45 to the Rosenthal Declaration.
100. “Weldon ROG II” means Objections and Responses of Plaintiff Fay Weldon to
Defendants’ Second Set of Interrogatories and Requests for the Production of Documents dated
April 10, 2012, a copy of which is annexed as Exhibit 46 to the Rosenthal Declaration.
Responses from Associational Plaintiffs
101. “AG ROG” means Amended Objections and Responses of Plaintiff The Authors
Guild to Defendants’ First Set of Interrogatories and Requests for the Production of Documents
dated April 3, 2012, a copy of which is annexed as Exhibit 47 to the Rosenthal Declaration.
102. “AG RFA” means Amended Objections and Responses of Plaintiff The Authors
Guild to Defendants’ First Set of Requests for Admission dated April 3, 2012, a copy of which is
annexed as Exhibit 48 to the Rosenthal Declaration.
103. “AG ROG II” means Objections and Responses of Plaintiff The Authors Guild to
Defendants’ Second Set of Interrogatories and Requests for the Production of Documents dated
April 20, 2012, a copy of which is annexed as Exhibit 49 to the Rosenthal Declaration.
104. “ALCS ROG” means Objections and Responses of Plaintiff The Authors’
Licensing and Collecting Society to Defendants’ First Set of Interrogatories and Requests for the
Production of Documents dated February 4, 2012, a copy of which is annexed as Exhibit 50 to
the Rosenthal Declaration.

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105. “ALCS RFA” means Objections and Responses of Plaintiff The Authors’
Licensing and Collecting Society to Defendants’ First Set of Requests for Admission dated
February 4, 2012, a copy of which is annexed as Exhibit 51 to the Rosenthal Declaration.
106. “ALCS ROG II” means Objections and Responses of Plaintiff The Authors’
Licensing and Collecting Society to Defendants’ Second Set of Interrogatories and Requests for
the Production of Documents dated April 20, 2012, a copy of which is annexed as Exhibit 52 to
the Rosenthal Declaration.
107. “ALF ROG” means Objections and Responses of Plaintiff The Authors League
Fund to Defendants’ First Set of Interrogatories and Requests for the Production of Documents
with Amended Schedule A dated January 25, 2012, a copy of which is annexed as Exhibit 53 to
the Rosenthal Declaration.
108. “ALF RFA” means Objections and Responses of Plaintiff The Authors League
Fund to Defendants’ First Set of Requests for Admission dated January 25, 2012, a copy of
which is annexed as Exhibit 54 to the Rosenthal Declaration.
109. “ALF ROG II” means Objections and Responses of Plaintiff The Authors League
Fund to Defendants’ Second Set of Interrogatories and Requests for the Production of
Documents dated April 20, 2012, a copy of which is annexed as Exhibit 55 to the Rosenthal
Declaration.
110. “ASA ROG” means Objections and Responses of Plaintiff The Australian Society
of Authors to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents dated February 10, 2012, a copy of which is annexed as Exhibit 56 to the Rosenthal
Declaration.
111. “ASA RFA” means Objections and Responses of Plaintiff The Australian Society
of Authors to Defendants’ First Set of Requests for Admission dated February 10, 2012, a copy
of which is annexed as Exhibit 57 to the Rosenthal Declaration.
112. “ASA ROG II” means Objections and Responses of Plaintiff The Australian
Society of Authors to Defendants’ Second Set of Interrogatories and Requests for the Production
of Documents dated April 20, 2012, a copy of which is annexed as Exhibit 58 to the Rosenthal
Declaration.
113. “SFF ROG” means Objections and Responses of Plaintiff Sveriges
Författarförbund (The Swedish Writers’ Union) to Defendants’ First Set of Interrogatories and
Requests for the Production of Documents dated January 23, 2012, a copy of which is annexed
as Exhibit 59 to the Rosenthal Declaration.
114. “SFF RFA” means Objections and Responses of Plaintiff Sveriges
Författarförbund (The Swedish Writers’ Union) to Defendants’ First Set of Requests for
Admission dated January 23, 2012, a copy of which is annexed as Exhibit 60 to the Rosenthal
Declaration.

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115. “SFF ROG II” means Objections and Responses of Plaintiff Sveriges
Författarförbund (The Swedish Writers’ Union) to Defendants’ Second Set of Interrogatories and
Requests for the Production of Documents dated April 20, 2012, a copy of which is annexed as
Exhibit 61 to the Rosenthal Declaration.
116. “NFF ROG” means Objections and Responses of Plaintiff Norsk Faglitterær
Forfatter- og Oversetterforening (The Norwegian Non-Fiction Writers and Translators
Association) to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents dated January 26, 2012, a copy of which is annexed as Exhibit 62 to the Rosenthal
Declaration.
117. “NFF RFA” means Objections and Responses of Plaintiff Norsk Faglitterær
Forfatter- og Oversetterforening (The Norwegian Non-Fiction Writers and Translators
Association) to Defendants’ First Set of Requests for Admission dated January 26, 2012, a copy
of which is annexed as Exhibit 63 to the Rosenthal Declaration.
118. “NFF ROG II” means Objections and Responses of Plaintiff Norsk Faglitterær
Forfatter- og Oversetterforening (The Norwegian Non-Fiction Writers and Translators
Association) to Defendants’ Second Set of Interrogatories and Requests for the Production of
Documents dated April 20, 2012, a copy of which is annexed as Exhibit 64 to the Rosenthal
Declaration.
119. “TWUC ROG” means Objections and Responses of Plaintiff The Writers’ Union
of Canada to Defendants’ First Set of Interrogatories and Requests for the Production of
Documents dated January 30, 2012, a copy of which is annexed as Exhibit 65 to the Rosenthal
Declaration.
120. “TWUC RFA” means Objections and Responses of Plaintiff The Writers’ Union
of Canada to Defendants’ First Set of Requests for Admission dated January 30, 2012, a copy of
which is annexed as Exhibit 66 to the Rosenthal Declaration.
121. “TWUC ROG II” means Objections and Responses of Plaintiff The Writers’
Union of Canada to Defendants’ Second Set of Interrogatories and Requests for the Production
of Documents dated April 20, 2012, a copy of which is annexed as Exhibit 67 to the Rosenthal
Declaration.
122. “UNEQ ROG” means Objections and Responses of Plaintiff Union des Écrivaines
et des Écrivains Québécois (Quebec Union of Writers) to Defendants’ First Set of Interrogatories
and Requests for the Production of Documents dated January 26, 2012, a copy of which is
annexed as Exhibit 68 to the Rosenthal Declaration.
123. “UNEQ RFA” means Objections and Responses of Plaintiff Union des Écrivaines
et des Écrivains Québécois (Quebec Union of Writers) to Defendants’ First Set of Requests for
Admission dated January 26, 2012, a copy of which is annexed as Exhibit 69 to the Rosenthal
Declaration.
124. “UNEQ ROG II” means Objections and Responses of Plaintiff Union des
Écrivaines et des Écrivains Québécois (Quebec Union of Writers) to Defendants’ Second Set of

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Interrogatories and Requests for the Production of Documents dated April 20, 2012, a copy of
which is annexed as Exhibit 70 to the Rosenthal Declaration.
Responses from Defendants
125. “HT ROG” means Responses to Plaintiffs’ First Set of Interrogatories to
Defendant HathiTrust dated February 8, 2012, a copy of which is annexed as Exhibit 71 to the
Rosenthal Declaration.
126. “HT ROG II” means Supplemental Responses to Plaintiffs’ First Set of
Interrogatories to Defendant HathiTrust dated April 9, 2012, a copy of which is annexed as
Exhibit 72 to the Rosenthal Declaration.
127. “UC ROG” means Responses to Plaintiffs’ First Set of Interrogatories to
Defendant Mark G. Yudof (University of California) dated February 8, 2012, a copy of which is
annexed as Exhibit 73 to the Rosenthal Declaration.
128. “UC RFA” means Responses to Plaintiffs’ First Requests for Admission to
Defendant Mark G. Yudof (University of California) dated February 8, 2012, a copy of which is
annexed as Exhibit 74 to the Rosenthal Declaration.
129. “UM ROG” means Responses to Plaintiffs’ First Set of Interrogatories to
Defendant Mary Sue Coleman (University of Michigan) dated February 8, 2012, a copy of which
is annexed as Exhibit 75 to the Rosenthal Declaration.
130. “UM ROG II” means Supplemental Responses to Plaintiffs’ First Set of
Interrogatories to Defendant Mary Sue Coleman (University of Michigan) dated April 9, 2012, a
copy of which is annexed as Exhibit 76 to the Rosenthal Declaration.
131. “UM RFA” means Responses to Plaintiffs’ First Requests for Admission to
Defendant Mary Sue Coleman (University of Michigan) dated February 8, 2012, a copy of which
is annexed as Exhibit 77 to the Rosenthal Declaration.
132. “UW ROG” means Responses to Plaintiffs’ First Set of Interrogatories to
Defendant Kevin Reilly (University of Wisconsin) dated February 8, 2012, a copy of which is
annexed as Exhibit 78 to the Rosenthal Declaration.
133. “UW RFA” means Responses to Plaintiffs’ First Requests for Admission to
Defendant Kevin Reilly (University of Wisconsin) dated February 8, 2012, a copy of which is
annexed as Exhibit 79 to the Rosenthal Declaration.

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Infringed Works
134.

“Infringed Works” means all of the works defined below, collectively.

Individual Plaintiffs’ Works
135. “Andreassen Works” means the work or works identified on Schedule A to the
Andreassen ROG.
136. “Cummings Works” means the work or works identified on Schedule A to the
Cummings ROG.
137. “Grundström Works” means the work or works identified on Schedule A to the
Grundström ROG.
138. “Loukakis Works” means the work or works identified on Schedule A to
Loukakis ROG.
139. “Robinson Works” means the work or works identified on Schedule A to the
Robinson ROG.
140. “Rønning Works” means the work or works identified on Schedule A to the
Rønning ROG.
141.

“Roy Works” means the work or works identified on Schedule A to the Roy

ROG.
142. “Salamanca Works” means the work or works identified on Schedule A to
Salamanca ROG.
143. “Shapiro Works” means the work or works identified on Schedule A to the
Shapiro ROG.
144.

“Simpson Works” means the work or works identified on Schedule A to Simpson

145.

“Stiles Works” means the work or works identified on Schedule A to the Stiles

146.

“Weldon Works” means the work or works identified on Schedule A to Weldon

ROG.
ROG.
ROG.

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Associational Plaintiffs’ Works
147.

“AG Works” means the work or works identified on Schedule A to the AG ROG.

148.

“ALF Works” means the work or works identified on Schedule A to the ALF

149.

“ASA Works” means the work or works identified on Schedule A to the ASA

ROG.
ROG.
150. “TWUC Works” means the work or works identified on Schedule A to the
TWUC ROG.

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