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

Filing 134

COUNTER STATEMENT TO 76 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., The Authors League Fund, 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]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
:
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

PLAINTIFFS’ COUNTER-STATEMENT IN RESPONSE TO DEFENDANT
INTERVENORS’ STATEMENT OF UNDISPUTED FACTS
Pursuant to Local Rule 56.1 of the Local Rules of the United States District Court for the
Southern District of New York, Plaintiffs submit the following counter-statement in response to
Defendant Intervenors’ Local Rule 56.1 Statement. 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 Plaintiffs’ 56.1 Statement filed in support of Plaintiffs’ motion for
summary judgment (“UF”).

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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.)

Controverted to the extent that the
statement implies that the HDL provides
access only to works in the public
domain and only to students and faculty
with print disabilities. Otherwise,
uncontroverted but immaterial because
Congress addressed the balance between
the rights of copyright owners and those
of academic and other users in the
Copyright Act, 17 U.S.C. § 101 et seq.
and specifically addressed the rules and
requirements for preservation and
replacement of books by Libraries and
Archives in Section 108 of the Copyright
, Act, 17 U.S.C. § 108. and for making
books available to the visually disabled
in Section 121 of the Copyright Act, 17
U.S.C. § 121.

2.

The combined corpus of the HDL now totals
more than 10 million works and is growing
daily. (Wilkin Decl. ¶¶ 57.)
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.)

Uncontroverted.

The vast majority of works in the HDL corpus
are out of print and have been out of print for
decades. (Wilkin Decl. ¶ 66.)

Controverted as a misstatement of the
declaration cited. Professor Wilkin
stated that the vast majority of “older
works” are out of print. Wilkin Decl ¶
66. Further controverted with respect to
the use of the term “vast majority” as
vague.

3.

4.

2

Uncontroverted except to the extent that
the word “vast” in the Statement is
vague. Plaintiffs’ concede that the
majority or the works in the HDL were
published before 2000, but note that the
majority of the works in the HDL still
are protected by copyright.

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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.)

Controverted to the extent that the
declaration cited does not support the
statement, particularly with respect to the
allegation that the HDL was the first
library collection fully accessible to the
blind. Otherwise uncontroverted but
immaterial because Congress because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

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.)
Background on the Defendant Intervenors

Uncontroverted.

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.)

Uncontroverted.

3

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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)
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).)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

9.

4

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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 time-consuming 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).)
What makes a Digital Book Accessible to the
Blind

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

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.)
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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

12.

13.

5

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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.)
Today, blind readers access digital books with a
screen reader or built-in text-to-speech 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.)
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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

15.

16.

6

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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.)
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 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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

18.

7

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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.)
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 nondramatically 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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

20.

8

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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.)
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 ebook distributor, which will be able to publish
the content on whatever platform it uses.
(Kerscher Decl. ¶ 28.)
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.)
Historical Lack of Access for the Blind to
Library Collections

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

22.

23.

9

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

24.

It is virtually impossible for blind students to
conduct library research in a traditional printbased 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.)
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.)
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.)
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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

25.

26.

27.

10

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.
Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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.)
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 nonprofit entities that create accessible books for the
blind on an ad hoc basis. (Kerscher Decl. ¶¶ 13,
37; Maurer Decl. ¶ 9.)
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 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.)
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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

29.

30.

31.

11

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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.)
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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

33.

12

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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.)
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.)
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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

35.

36.

13

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.
Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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 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.)
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.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

38.

14

Uncontroverted but immaterial.

No.

INTERvENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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.)
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.)
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.
UCerscher DecI. ¶ 39.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

40.

41.

42.

15

Uncontroverted but immaterial.

Uncontroverted but immaterial.

No

INTERVENORS’ ASSERTED UNDJSPUTED FACT

RESPONSE

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 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
DecI. ¶ 30; Maurer DecI. ¶ 13; Wilkin DecI. ¶~f
103 -04.)
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 DecI. ¶ 100.)

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

44.

45.

Controverted to the extent that the
evidence does not support the statement
that one of University of Michigan’s
“primary goals” has always been to
provide specialized services to the blind
or other persons with disabilities. S

addition, only 32 blind University of
Michigan students and faculty have
requested and obtained privileged access.
UP 102. Otherwise uncontroverted but
immaterial because Congress provided
the rules and requirements for making
books available to the visually disabled
in Section 121 of the Copyright Act, 17
U.S.C. § 121.

The HathiTrust scans are high resolution images Uncontroverted but immaterial because
that have been digitized very sophisticated
Congress provided the rules and
OCRIOSR. Although images are not described
requirements for making books available
and tables are not tagged, the table text is
to the visually disabled in Section 121 of
present, and the scans include the vast majority
the Copyright Act, 17 U.S.C. § 121.
of metadata necessary to make them fully
accessible to the blind. They can be navigated by
chapter, page, line, and character. (Kerscher
Decl. ¶ 30.)

16

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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.)
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.)
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).

Uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

47.

48.

17

Controverted to the extent that the
statement suggests that the format
referred to is a “Specialized Format”
within the meaning of Section 121 of the
Copyright Act. Otherwise,
uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

Controverted to the extent that the terms
“best promise” or “meaningful access”
are vague and also because the cited
declarants are not competent or qualified
to make the statements attributable to
them and because the word “academy” is
vague. Otherwise uncontroverted but
immaterial because Congress provided
the rules and requirements for making
books available to the visually disabled
in Section 121 of the Copyright Act, 17
U.S.C. § 121.

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NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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.)
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.)
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).

Uncontroverted but immaterial.

54.

55.

19

Controverted. Second Declaration of
Paul Aiken (“Aiken Second Decl.”) ¶¶ 325. Further controverted because the
cited declarants are not competent or
qualified to make broad generalized
statements about the motives and actions
of “authors and publishers” or of the
corporations referred to.

Controverted because the statement uses
the vague term “all the companies that
were developing e-books” and makes
unsupported, blanket conclusions about
the intentions of such companies, and
because the cited declarant is not
competent or qualified to make this
statement. Otherwise uncontroverted but
immaterial because Congress provided
the rules and requirements for making
books available to the visually disabled
in Section 121 of the Copyright Act, 17
U.S.C. § 121.

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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 ebook marketplace accessible. (Maurer Decl. ¶¶
21, 23.)

Controverted because the statement
includes unsupported, blanket
conclusions about the intentions of
“publishers and authors” as a collective
and also includes statements beyond the
competence or qualifications of the cited
declarants. Otherwise uncontroverted
but immaterial because Congress
provided the rules and requirements for
making books available to the visually
disabled in Section 121 of the Copyright
Act, 17 U.S.C. § 121.

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.)

Controverted to the extent that the term
“little expense” is vague and because the
statement about “all new books” is
outside of the competence or
qualifications of the cited declarant.
Otherwise uncontroverted but immaterial
because Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

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.)

Controverted to the extent that the
statement includes conclusions about the
beliefs and perceptions of “tech
companies and publishers,” and also
controverted because “tech companies
and publishers” is a vague term and
because the statements are outside of the
competence and qualifications of the
cited declarant. Otherwise
uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

20

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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-to-speech 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.)
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).
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.)

Controverted to the extent that the
statement suggests or implies that the
Authors Guild sought to restrict access to
digitized books by the blind. Aiken
Second Decl. ¶¶ 3-25.

60.

61.

21

Controverted because it includes
conclusions about the beliefs and
perceptions of Amazon.com and also
includes statements beyond the
competence and qualifications of the
cited declarants.

Controverted to the extent that the
statement suggests or implies that the
Authors Guild sought to restrict access to
digitized books by the blind. Aiken
Second Decl. ¶¶ 3-25.

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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.)
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 textto-speech on the Kindle 2. (Maurer Decl. ¶32.)
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.)
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.)
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.)

Controverted to the extent that the
statement suggests or implies that the
Authors Guild sought to restrict access to
digitized books by the blind. Aiken
Second Decl. ¶¶ 3-25.

63.

64.

65.

66.

22

Controverted to the extent that the
statement suggests or implies that the
Authors Guild sought to restrict access to
digitized books by the blind. Aiken
Second Decl. ¶¶ 3-25.
Controverted to the extent that the
statement suggests or implies that the
Authors Guild sought to restrict access to
digitized books by the blind. Aiken
Second Decl. ¶¶ 3-25.

Controverted to the extent that the
statement suggests or implies that the
Authors Guild sought to restrict access to
digitized books by the blind. Aiken
Second Decl. ¶¶ 3-25.

Controverted to the extent that the study
referred to therein speaks for itself.
Otherwise, uncontroverted but
immaterial because Congress provided
the rules and requirements for making
books available to the visually disabled
in Section 121 of the Copyright Act, 17
U.S.C. § 121.

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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.)

Controverted because the assumption
that there is no market for the blind or
print disabled and the conclusions about
the beliefs of “publishers,” a vague and
undefined term, are outside of the
competence and qualifications of the
cited declarant. Otherwise
uncontroverted but immaterial because
Congress provided the rules and
requirements for making books available
to the visually disabled in Section 121 of
the Copyright Act, 17 U.S.C. § 121.

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.)
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.)

Controverted to the extent that the
statement refers to judicial filings and
settlements the terms of which speak for
themselves.

69.

23

Uncontroverted but immaterial.

NO.

INTERVENORS’ ASSERTED UNDISPUTED FACT

RESPONSE

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.)
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 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.)
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.)

Uncontroverted but immaterial.

71.

72.

24

Uncontroverted but immaterial.

Controverted to the extent the statement
includes the vague, unsupported and
overbroad conclusion that the blinds’
access problems are “unlikely to ever be
solved unless the HathiTrust is permitted
to continue,” as well as the conclusion
that there is no market in the blindness
community and also controverted as
outside of the competence and
qualifications of the cited declarant.
Further controverted because Section
121 of the Copyright Act, 17 U.S.C. §
121, includes the rules and requirements
for making works available to the
visually disabled and because any change
in those rules and requirements must be
made by Congress.

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

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

25